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9 





THE STATE 


ELEMENTS OF HISTORICAL AND 
PRACTICAL POLITICS 


BY 

WOODROW WILSON 


SPECIAL EDITION" 

REVISED TO DECEMBER, 1918 

BY 

EDWARD ELLIOTT, Ph.D. 

PROFESSOR OF INTERNATIONAL LAW AND POLITICS 
IN THE UNIVERSITY OF CALIFORNIA 





D. C. HEATH & CO., PUBLISHERS 

BOSTON NEW YORK CHICAGO 


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Copyright, 1898 and 1918 

By WOODKOW WILSON 


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PRINTED IN U.8.A. 


PREFACE 


The present edition of The State has been prepared to set 
forth the nature of the governments of the principal belligerent 
powers; the chapters dealing with ancient Greece, Rome, Nor¬ 
way, and Sweden have been omitted, and new chapters on Italy, 
Belgium, Serbia, Rumania, Bulgaria, modern Greece, Russia, 
Turkey, and Japan have been added, as has a chapter on After 
the War. The original chapters on England, France, the United 
States, Switzerland, Germany, and Austria have been revised. 
In view of the unsettled conditions in Germany and Austria, the 
governments of these countries have been described as they existed 
in 1914, and a brief statement made of their condition as it exists 
as this is written (December 1, 1918). The changes made in the 
revision have sought merely to bring the work up to date; they 
are relatively few, and the text of the original chapters remains 
for the most part that of the author, both in language and opinion. 
For the new chapters I must assume full responsibility. 

It has seemed wise to include in this edition the chapters of a 
general character, dealing with the origin, nature, functions, and 
objects of government, and with the nature of law. Though they 
were written thirty years ago, it is believed that they represent 
substantially President Wilson’s views to-day. In the new chap¬ 
ters I have not indicated specifically the sources upon which I 
have relied, nor can I do more here than make general acknowl¬ 
edgment of my indebtedness to those whose work has been most 
helpful. 

I wish to express my appreciation of the aid given me by my 
colleague, Dr. Ludwik Ehrlich, who has freely placed at my 
service his wide knowledge of European governments and in par¬ 
ticular of the governments of Germany and Austria. 

Edward Elliott. 

Berkeley, California, 

December 1, 1918. 


CONTENTS 


CHAPTER PAGB 


I 

Earliest Forms of Government . 

. 

• 

• 

. 

• 

1 

II 

The Nature and Forms of Government 

• 

• 


• 

26 

III 

The Functions of Government 

. 

• 

• 



41 

IV 

The Objects of Government 

. 

• 

• 



58 

V 

Law — Its Nature and Development 

. 

• 

• 



69 

VI 

Polity and Governments during the 

Middle 

Ages 



94 

VII 

The Government of France . 

. 





129 

VIII 

The Government of Great Britain 

. 


• 



178 

IX 

The Government of United States 

. 

• 

- • 



267 

X 

The Governments of Switzerland 

. 

• 

• 



387 

XI 

The Government of Italy 

. 

• 

• 


• 

421 

XII 

The Government of Belgium 

. 

• 

• 


• 

432 

XIII 

The Governments of Germany 

. 

• 

• 


• 

438 

XIV 

The Governments of Austria-Hungary 

• 

• 


• 

491 

XV 

The Government of Serbia . 

. 

• 

• 


• 

507 

XVI 

The Government of Rumania 

. 

• 

• 


• 

512 

XVII 

The Government of Bulgaria 

. 

• 

• 


• 

516 

£VIII 

The Government of Greece . 

. 

• 

• 


• 

519 

XIX 

The Governments of Russia and Turkey 

• 

• 


• 

523 

XX 

The Government of Japan . 

. 




• 

526 

XXI 

Summary: Constitutional and Administrative Develop- 



MENTS . 





• 

534 

XXII 

After the War 





• 

551 


IV 








I. 


THE EARLIEST FORMS OF GOVERNMENT. 

Nature of the Question. —The probable origin of govern¬ 
ment is a question of fact, to be settled, not by conjecture, but 
by history. Some traces we can still discern of the history of 
primitive societies. As fragments of primitive animals have 
been kept for us sealed up in the earth’s rocks, so fragments 
of primitive institutions have been preserved, embedded in the 
rocks of surviving law or custom, mixed up with the rubbish of 
accumulated tradition, crystallized in the organization of still 
savage tribes, or kept curiously in the museum of fact and rumor 
swept together by some ancient historian. Limited and perplex¬ 
ing as such means of reconstructing history may be, they repay 
patient comparison and analysis as richly as do the materials of 
the archaeologist and the philologian. The facts as to the origin 
and early history of government are at least as available as the 
facts concerning the growth and kinship of languages or the 
genesis and development of the arts and sciences. Such light 
as we can get from the knowledge of the infancy of society thus 
meagrely afforded us is, at any rate, better than that derived 
from a priori speculations founded upon our acquaintance with 
our modern selves, or from any fancies, how learnedly soever 
constructed, that we might weave as to the way in which history 
might plausibly be read backwards. 

Races to be studied: the Aryans. — For purposes of widest 
comparison in tracing the development of government it would 
of course be desirable to include in a study of early society not 
only those Aryan and Semitic races which have played the chief 
parts in the history of the European world, but also every primi¬ 
tive tribe, whether Hottentot or Iroquois, Finn or Turk, of whose 

1 


2 


THE EARLIEST FORMS OF GOVERNMENT. 


institutions and development we know anything at all. Such a 
world-wide survey would be necessary to any induction which 
should claim to trace government in all its forms to a common 
archetype. But, practically, no such sweeping together of incon¬ 
gruous savage usage and tradition is needed to construct a safe 
text from which to study the governments that have grown and 
come to full flower in the political world to which we belong. 
In order to trace the lineage of the European and American 
governments which have constituted the order of social life for 
those stronger and nobler races which have made the most nota¬ 
ble progress in civilization, it is essential to know the political 
history of the Greeks, the Latins, the Teutons, and the Celts 
principally, if not only, and the original political habits and 
ideas of the Aryan and Semitic races alone. The existing gov¬ 
ernments of Europe and America furnish the dominating types 
of to-day. To know other systems which are defeated or dead 
would aid only indirectly towards an understanding of those 
which are alive and triumphant. 

Semitic and Turanian Instance. —Even Semitic institutions, 
indeed, must occupy only a secondary place in such inquiries. 
The main stocks of modern European forms of government are 
Aryan. The institutional history of Semitic or Turanian peoples 
is hardly part of the history of European governments: it is only 
analogous to it in many of the earlier stages of development. 
Aryan, Semitic, and Turanian races alike seem to have passed 
at one period or another through similar forms of social organiza¬ 
tion. Each, consequently, furnishes illustrations in its history, 
and in those social customs and combinations which have most 
successfully survived the wreck of change, of probable early 
forms and possible successive stages of political life among the 
others. Aryan practice may often be freed from doubt by 
Semitic or Turanian instance*, but it is Aryan practice we prin¬ 
cipally wish to know. 

Government rested First upon Kinship. 1 —What is known of 

the central nations of history clearly reveals the fact that social 
organization, and consequently government (which is the visible 
form of social organization), originated in kinship. The original 
1 The origin of government in kinship has been sharply questioned. 


THE EARLIEST FORMS OF GOVERNMENT. S 

bond of union and the original sanction for magisterial authority 
were one and the same thing, namely, real or feigned blood-rela¬ 
tionship. In other words, families were the original units of 
social organization; and were at first, no doubt, in a large degree 
separate. It was only by slow stages and under the influence of 
many changes of habit and environment that the family organi¬ 
zation widened and families were drawn together into communi¬ 
ties. A group of men who considered themselves in some sort 
kinsmen constituted the first State. 

Early History of the Family; was it originally Patriarchal ? 
— The origin of government is, therefore, intimately connected 
with the early history of the family. It is the more unfortunate 
that the conclusions to be drawn from what is known of -the 
beginnings of the family should furnish matter for much modern 
difference of opinion. This difference of opinion may be defi¬ 
nitely summed up in the two following contrasted views: — 

(1) That the patriarchal family, to which the early history of 
the greater races runs back, and with which that history seems 
to begin, was the family in its original estate, — the original, the 
true archaic family. 

The patriarchal family is that in which descent is traced to a common 
male ancestor, through a direct male line, and in which the authority of 
rule vests in the eldest living male ascendant. 

(2) That the patriarchal family, which is acknowledged to be 
found in one stage or another of the development of almost every 
race now civilized, was a developed and comparatively late form 
of the family, and not its first form, having been evolved through 
various stages and varieties of polyandry (plurality of husbands) 
and of polygyny (plurality of wives) out of a possibly original 
state of promiscuity and utter confusion in the relations of the 
sexes and of consequent confusion in blood-relationship and in 
the government of offspring. 

In brief, it is held on the one h^nd that the patriarchal family 
was the original family; and on the other, that it was not the 
original but a derived form, others of a less distinct organization 
preceding it. 

The Evidence. — It is of course impracticable to set forth 


4 


THE EARLIEST FORMS OF GOVERNMENT. 


here the miscellaneous evidence which has been swept together 
concerning so very obscure and complex a question. Suffice it 
to say that among many primitive races cases abound of the 
reckoning of kinship through mothers only, as if in matter-of- 
course doubt as to paternity; of consanguinity signified through¬ 
out the wide circle of a tribe, not by real or supposed common 
descent from a human ancestor, but by means of the fiction of 
common descent from some bird or beast, from which the tribe 
takes its name, as if for lack of any better means of determining 
common blood; of marriages of brothers with sisters, and of 
groups of men with groups of women, or of groups of men with 
some one woman. In the case of some tribes, moreover, among 
whom polygamy or even monogamy now exists, together with a 
patriarchal discipline, it is thought to be possible to trace clear 
indications of an evolution of these more civilized forms of family 
organization from earlier practices of loose multiple marriages 
or even still earlier promiscuity in the sexual relation. 

The peoples, however, among whom such confusions of sexual 
relationships have been observed are not those who have emerged 
upon the European field. Among almost every European folk 
there is clear, unbroken tradition running back to a patriarchal 
power and organization. Eoman law, that prolific mother of 
modern legal idea and practice, bears impressed upon every 
feature of it indubitable marks of its descent from a time when 
the father ruled as king and high priest in the family. Greek 
institutions speak hardly less unequivocally of a similar deriva¬ 
tion. No belief is more deeply fixed in the traditions of the 
great peoples who have made modern history than the belief of 
direct common descent, through males, from a common male 
ancestor, human or divine; and nothing could well be more 
numerous or distinct than the traces inhering in the very heart 
of their polity of an original patriarchal organization of the 
family as the archetype of their political order. 

The Warrantable Conclusion. —The evidence of more con¬ 
fused marriage relationships, moreover, is nowhere of such a 
character as to warrant the conclusion that promiscuity in sexual 
connections has among any people marked the first or any regular 
stage of social development. “ All the evidence we possess tends 


THE EARLIEST FORMS OF GOVERNMENT. 0 

to show that among our earliest human ancestors the family, not 
the tribe, formed the nucleus of every social group, and, in many 
cases, was itself perhaps the only social group.” “It seems 
probable, moreover, that monogamy prevailed almost exclusively 
among our earliest human ancestors.” 1 Promiscuity belongs, 
not to the most primitive times or to the regular order of social 
life, but rather to exceptional seasons of demoralization or con¬ 
fusion; to times of decadence rather than to the origins of the 
race. Polyandry has grown up only where the women were fewer 
than the men, and has almost necessarily broken down when the 
numerical balance between the sexes was restored. Polygyny 
“has been less prevalent at the lowest stages of civilization,— 
where wars do not seriously disturb the proportion of the sexes; 
where life is chiefly supported by hunting, and female labor is 
consequently of slight value; where there is no accumulation of 
wealth and no distinction of class, —than it is at somewhat higher 
stages.” 2 Where it does exist, it is invariably confined to a 
small minority of wealthy and powerful men; the majority, from 
choice or necessity, are always monogamous. First and last, the 
strong monogamous instinct, has tended to exclude promiscuous 
or multiplied sexual connections, and to build up a distinct family 
order round about monogamous marriages. 3 

The efficient races who have dominated the European stage, at 
any rate, came into their place of leadership and advantage under 
the discipline of the patriarchal order of family life. Whether 
with several wives or with only one, the father was chief and 
master among them, and the family showed that clear authority 
and close organization which was to serve in fulness of time as 
the prototype and the model for the State. 

From the Patriarchal Family to the State. — Among these 
Aryan peoples there was first the family ruled by the father as 
king and priest. There was no majority for the sons so long as 
their father lived. They might marry and have children, but 
they could have no entirely separate and independent authority 
during their father’s life save such as he suffered them to exer- 

1 Westermarck, History of Human Marriage , pp. 538, 549. 2 Id. 548. 

3 For a contrary view see Avebury, The Origin of Civilization and the 
Primitive Condition of Man. 6th ed., London, 1902. 


6 


THE EARLIEST FORMS OF GOVERNMENT. 


cise. All that they possessed, their lives even and the lives of 
those dependent upon them, were at the disposal of this abso¬ 
lute father-sovereign. Such a group naturally broadens in time 
into the ‘House/ or gens , and over this too a chief kinsman rules. 
There are common religious rites and observances which the gens 
regards as symbolic of its unity as a composite family; and heads 
of houses exercise many high representative and probably some 
imperative magisterial functions by virtue of their position. 
Then, as the social order widens, Houses are in their turn 
absorbed. The first distinctively political unit, no doubt, was 
the Tribe: broader than the gens and tending to subordinate it; 
a body in which kinship must still have been deemed the bond 
of union, but in which, nevertheless, it must have been a very 
obscure bond indeed, and in which family rights must steadily 
have tended to give way before the establishment of a common 
order within which the House served only as a unit of member¬ 
ship and a corporation for worship. 

Tribes at length united to form a State. In days of nomadic 
habit the organization of the Tribe sufficed, and no more fixed, 
definite, or effective order was attempted. But when a people’s 
travelling days were over, a settled life brought new needs of 
organization: a larger power must have sprung up almost of 
itself. Then a very significant thing happened. The State in 
effect ousted both the House and the Tribe from their functions 
as political units, and came itself to rest, not upon these for 
foundation, but upon the family, the original formation of the 
social substructure. Tribe and gens served henceforth only as 
religious corporations or as the convenient units of representa¬ 
tion in the action of the State. 

Prepossessions to be put away. —In looking back to the first 
stages of political development, it is necessary to put away from 
the mind certain prepossessions which are both proper and legiti¬ 
mate to modern conceptions of government, but which can have 
found no place in primitive thought on the subject. It is not 
possible nowadays to understand the early history of institutions 
without thus first divesting the mind of many conceptions most 
natural and apparently most necessary to it. The centuries which 
separate us from the infancy of society separate us also, by the 


THE EARLIEST FORMS OF GOVERNMENT. 


7 


whole length of the history of human thought, from the ideas into 
which the fathers of the race were born ; and nothing but a most 
credulous movement of the imagination can enable the student of 
to-day to throw himself back into those conceptions of social con¬ 
nection and authority in which government took its rise. 

The State and the Land. — How is it possible, for instance, foi 
the modern mind to conceive distinctly a travelling political organi¬ 
zation, a State without territorial boundaries or the need of them, 
composed of persons, but associated with no fixed or certain habi¬ 
tat ? And yet such were the early tribal states, — nomadic groups, 
now and again hunting, fishing, or tending their herds by this or 
that particular river or upon this or that familiar mountain slope 
or inland seashore, but never regarding themselves or regarded by 
their neighbors as finally identified with any definite territory. 
Historians have pointed out the abundant evidences of these facts 
that are to be found in the history of Europe no further back than 
the fifth century of our own era. The Franks came pouring into 
the Roman empire just because they had had no idea theretofore 
of being confined to any particular Frank-tad. They left no 
France behind them at the sources of the Rhine; and their kings 
quitted those earlier seats of their race, not as kings of France, 
but as kings of the Franks. There were kings of the Franks 
when the territory now called Germany, as well as that now 
known as France, was in the possession of that imperious race: 
and they became kings of France only when, some centuries later, 
they had settled down to the unaccustomed habit of confining 
themselves to a single land. Drawn by the processes of feudali- 
zation (pages 109, 115, 129), sovereignty then found at last a 
local habitation and a name. 

The same was true of the other Germanic nations. They 
also had chiefs who were the chiefs of people, not the chiefs of 
lands. There were kings of the English for many a year, even 
for several centuries after a.d. 449, before there was such a thing 
as a king of England. John was the first officially to assume the 
latter title. From the first, it is true, social organization has 
everywhere tended to connect itself more and more intimately 
with the land from which each social group has drawn its suste¬ 
nance. When the migratory life was over, especially, and the 


8 


THE EARLIEST FORMS OF GOVERNMENT. 


settled occupations of agriculture had brought men to a stand 
upon the land which they were learning to till, political life, 
like all the other communal activities, came to be associated 
more and more directly with the land on which each community 
lived. But such a connection between lordship and land was a 
slowly developed notion, not a notion twin-born with the notion of 
government. 

Modern definitions of a State always limit sovereignty to 
some definite land. “ A State ” — runs the modern definition — 
“ is a People organized for law within a definite territory.” But 
the first builders of government would not have found such a 
definition intelligible. They could not have understood why 
they might not move their whole people, ‘bag and baggage/ to 
other lands, or why, for the matter of that, they might not keep 
them moving their tents and possessions unrestingly from place 
to place in perpetual migration, without in the least disturbing 
the integrity or even the administration of their infant ‘ State.’ 
Each organized group of men had other means of knowing their 
unity than mere neighborhood to one another; other means of 
distinguishing themselves from similar groups of men than dis¬ 
tance or the intervention of mountain or stream. The original 
groups were knit together by bonds closer than those of geog¬ 
raphy, more real than the bonds of mere contiguity. They were 
bound together by real or assumed kinship. They had a corporate 
existence which they regarded as inhering in their blood and as 
expressed in all their daily relations with each other. They 
lived together because of these relations; they were not related 
because they lived together. 

Contract versus Status. — Scarcely less necessary to modern 
thought than the idea of territoriality as connected with the exist¬ 
ence of a State, is the idea of contract as determining the relations 
of individuals. And yet this idea, too, must be put away if we 
would understand primitive society. In that society men were 
born into the station and the part they were to have throughout 
life, as they still are among the peoples who preserve their earliest 
conceptions of social order. This is known as the law of status. 
It is not a matter of choice or of voluntary arrangement in what 
relations men shall stand towards each other as individuals. He 


THE EARLIEST FORMS OF GOVERNMENT. 


9 


who is bom a slave, let him remain a slave; the artisan, an arti« 
san; the priest, a priest, — is the command of the law of status. 
Excellency cannot avail to raise any man above his parentage; 
aptitude is suffered to operate only within the sphere of each 
man’s birthright. No man may lose 1 caste’ without losing 
respectability also and forfeiting the protection of the law. Or, 
to go back to a less developed society, no son, however gifted, 
may lawfully break away from the authority of his father, how¬ 
ever cruel or incapable that father may be; or make any alliance 
which will in the least degree draw him away from the family 
alliance and duty into which he was born. There is no thought 
of contract. Every man’s career is determined for him before 
his birth. His blood makes his life. To break away from one’s 
birth station, under such a system, is to make breach not only of 
social, but also of religious duty, and to bring upon oneself the 
curses of men and gods. Primitive society rested, not upon con¬ 
tract, but upon status. Status had to be broken through by some 
conscious or unconscious revolution before so much as the idea 
of contract could arise; and when that idea did arise, change and 
variety were assured. Change of the existing social order was 
the last thing of which the primitive community dreamed; and 
those races which allowed the rule of status to harden about their 
lives still stand where they stood a thousand years ago. “ The 
leaving of men to have their careers determined by their efficien¬ 
cies,” says Mr. Spencer, “ we may call the principle of change in 
social organization.” 

Theories concerning the Origin of the State: the Contract 
Theory. — Such views of primitive society furnish us with destruc¬ 
tive dissolvents of certain theories once of almost universal vogue 
as to the origin of government. The most famous, and for our 
present purposes most important, of these theories is that which 
ascribes the origin of government to a ‘social compact' among 
primitive men. 

The most notable names connected with this theory as used to account 
for the existence of political society are the names of Hooker, Hobbes, 
Locke, and Rousseau. It is to be found developed in Hooker’s Ecclesias - 
tical Polity, Hobbes’ Leviathan , Locke’s Civil Government, and Rousseau’s 
The Social Contract. 


10 


THE EARLIEST FORMS OF GOVERNMENT. 


This theory begins always with the assumption that there exists, 
outside of and above the laws of men, a Law of Nature. 1 Hobbes 
conceived this Law to include “ justice,” “ equity,” “ modesty,” 
“ mercy “in sum, ‘ doing to others as we would be done to.’” 
All its chief commentators considered it the abstract standard to 
which human law should conform. Into this Law primitive men 
were born. It was binding upon their individual consciences; but 
their consciences were overwhelmed by individual pride, ambi¬ 
tion, desire, and passion, which were strong enough to abrogate 
Nature’s Law. That Law, besides, did not bind men together. Its 
dictates, if obeyed, would indeed enable them to live tolerably 
with one another; but its dictates were not obeyed; and, evpn if 
they had been, would have furnished no permanent frame of civil 
government, inasmuch as they did not sanction magistracies, the 
setting of some men to be judges of the duty and conduct of other 
men, but left each conscience to command absolutely the conduct 
of the individual. In the language of the ‘judicious Hooker/ 
the laws of Nature “do bind men absolutely, even as they are 
men, although they have never any settled fellowship, never any 
solemn agreement, amongst themselves what to do or not to do; 
but forasmuch as we are not by ourselves sufficient to furnish 
ourselves with competent store of things needful for such a life 
as our Nature doth desire, a life fit for the dignity of man, there¬ 
fore to supply these defects and imperfections which are in us 
living single and solely by ourselves, we are naturally induced to 
seek communion and fellowship with others. This was the cause 
of men uniting themselves at first in politic societies.” 2 In other 
words, the belligerent, non-social parts of man’s character were 
originally too strong for this Law of Nature, and the ‘state of 
nature/ in which that Law, and only that Law, offered restraint 
to the selfish passions, became practically a state of war , and con¬ 
sequently intolerable. It was brought to an end in the only way 
in which such a condition of affairs could be brought to an end 
without mutual extermination, namely, by common consent, by 
men’s “ agreeing together mutually to enter into one community 

1 For the natural history of this conception of a Law of Nature, see Maine, 
Ancient Law, Chap. III. 

2 Ecclesiastical Polity , Book I., sec. 10. 


THE EARLIEST FORMS OF GOVERNMENT. 


11 


and make one body politic.” (Locke.) This agreement meant sub* 
mission to some one common authority, which should judge between 
man and man; the surrender on the part of each man of all rights 
antagonistic to the rights of others; forbearance and cooperation. 
Locke confidently affirmed “that all men are naturally in that 
state [a state, i.e., of nature], and remain so till, by their own 
consents, they make themselves members of some politic society.” 
It was only as the result of deliberate choice, in the presence of 
the possible alternative of continuing in this state of nature, that 
commonwealths came into being. 

Traditions of an Original Lawgiver. — Ancient tradition 
had another way of accounting for the origin of laws and institu¬ 
tions. The thought of almost every nation of antiquity went back 
to some single lawgiver at whose hands their government had 
taken its essential and characteristic form, if not its beginning. 
There was a Moses in the background of many a history besides 
that of the Jews. In the East there was Menu; Crete had her 
Minos; Athens her Solon; Sparta her Lycurgus; Lome her 
Numa; England her Alfred. These names do not indeed in 
every instance stand so far back as the beginning of government; 
but they do carry the mind back in almost every case to the birth 
of national systems, and suggest the overshadowing influence of 
individual statesmen as the creative power in framing the greater 
combinations of politics. They bring the conception of conscious 
choice into the history of institutions. They look upon systems 
as made, rather than as developed. 

Theory of the Divine Origin of the State. —Not altogether 
unlike these ancient conceptions of lawgivers towering above 
other men in wisdom and authority, dominating political construc¬ 
tion, and possibly inspired by divine suggestion, is that more 
modern idea which attributes human government to the imme¬ 
diate institution of God himself, — to the direct mandate of the 
Creator. This theory has taken either the definite form of regard¬ 
ing human rulers as the direct vicegerents of God, or the vague 
form of regarding government as in some way given to man as 
part of his original make-up 

The Theories and the Facts. — Modern research into the 
early history of mankind has made it possible to reconstruct, 


12 


THE EARLIEST FORMS OF GOVERNMENT. 


In outline, much of the thought and practice of primitive society, 
and has thus revealed facts which render it impossible for us to 
accept any of these views as adequately explaining what they 
seek to explain. The defects of the social compact theory are too 
plain to need more than brief mention. That theory simply has 
no historical foundation. The family was the original, and status 
the fixed basis, of primitive society. The individual counted for 
nothing; society—the family, the tribe — counted for everything. 
Government came, so to say, before the individual and was coeval 
with his first human instincts. There was no place for contract; 
and yet this theory makes contract the first fact of social life. 
Such a contract as it imagines could not have stood unless sup¬ 
ported by that reverence for ‘ law ’ which is an altogether modern 
principle of action. The times in which government originated 
knew absolutely nothing of law as we conceive it. The only bond 
was kinship, — the common blood of the community; the only 
individuality was the individuality of the community as a whole. 
Man was merged in society. Without kinship there was no duty 
and no union. It was not by compounding rights, but by assum¬ 
ing kinship, that groups widened into States, — not by contract, 
but by adoption. Not deliberate and reasoned respect for law, 
but habitual and instinctive respect for authority, held men 
together; and authority did not rest upon mutual agreement, 
but upon mutual subordination. 

Of the theories of the origination of government in indi¬ 
vidual lawgiving or in divine dictate, it is sufficient to say that 
the one exaggerates the part played by human choice, and the 
other the part played by man’s implanted instincts, in the 
formation and shaping of political society. 

The Truth in the Theories. — Upon each of these theories, 
nevertheless, there evidently lies the shadow of a truth. Although 
government did not originate in a deliberate contract, and althougl 
no system of law or of social order was ever made ‘ out of hand 9 
by any one man, government was not all a mere spontaneous 
growth. Deliberate choice has always played a part in its devel¬ 
opment. It was not, on the one hand, given to man ready-made 
by God, nor was it, on the other hand, a human contrivance. In 
its origin it was spontaneous, natural, twin-born with man and 


THE EARLIEST FORMS OF GOVERNMENT. 


13 


the family; Aristotle was simply stating a fact when he said, 
“ Man is by nature a political animal.” But, once having arisen, 
government was affected, and profoundly affected, by man’s 
choice; only that choice entered, not to originate, but to modify 
government. 

Conclusion. —Viewed in the light of “the observed and 
recorded experience of mankind,” “the ground and origin of 
society is not a compact; that never existed in any known case, 
and never was a condition of obligation either in primitive or 
developed societies, either between subjects and sovereign, or 
between the equal members of a sovereign body. The true 
ground is the acceptance of conditions which came into exist¬ 
ence by the sociability inherent in man, and were developed by 
man’s spontaneous search after convenience. The statement that 
while the constitution of man is the work of nature, that of the 
state is the work of art, is as misleading as the opposite state¬ 
ment that governments are not made, but grow. The truth lies 
between them, in such propositions as that institutions owe their 
existence and development to deliberate human effort, working in 
accordance with circumstances naturally fixed both in human 
character and in the external field of its activity.” 1 

The Beginnings of Government. — Government must have 
had substantially the same early history amongst all progressive 
races. It must have begun in clearly defined family discipline. 
Such discipline would scarcely be possible among races in which 
consanguinity was subject to profound confusion and in which 
family organization therefore had no clear basis of authority on 
which to rest. In every case, it would seem, the origination of 
what we should deem worthy of the name of government must 
have awaited the development of some such definite family as 
that in which the father was known, and known as ruler. 
Whether or not the patriarchal family was the first form of the 
family, it must have furnished the first adequate form of gov¬ 
ernment. 

The Family the Primal Unit. — The family was the primal 
unit of political society, and the seed-bed of all larger growths of 
government. The individuals that were drawn together to com 

1 John Morley, Bousseau, Vol. II., pp. 183-4. 


14 


THE EARLIEST FORMS OF GOVERNMENT. 


stitute the earliest communities were not individual men, as 
Locke and Locke’s co-theorists would lead us to believe, but 
individual families; and the organization of these families, 
whether singly or in groups, furnished the ideas in which politi¬ 
cal society took its root. The members of each family were 
bound together by kinship. The father’s authority bore the 
single sanction of his being the fountain-head of the common 
blood-relationship. No other bond was known, or was then con¬ 
ceivable, except this single bond of blood-relationship. A man 
out of this circle of kinship was outside the boundaries of pos¬ 
sible friendship, was as of course an alien and an enemy. 

Persistence of the Idea of Kinship. — When society grew, 
it grew without any change of this idea. Kinship was still, 
actually or theoretically, its only amalgam. The commonwealth 
was for long conceived of as being only a larger kindred. When 
by natural increase a family multiplied its branches and widened 
into a gens, and there was no grandfather, great-grandfather, or 
other patriarch living to keep it together in actual domestic 
oneness, it would still not separate. The extinct authority of 
the actual ancestor could be replaced by the less comprehensive 
but little less revered authority of some selected elder of the 
‘House,’ the oldest living ascendant, or the most capable. Here 
would be the materials for a complete body politic held together 
by the old fibre of actual kinship. 

Fictitious Kinship : Adoption. — Organization upon the 
basis of a fictitious kinship was hardly less naturally contrived 
in primitive society. There was the ready, and immemorial, 
fiction of adoption , which to the thought of that time seemed no 
fiction at all. The adopted man was no less real a member of 
the family than was he who was natural-born. His admittance 
to the sacred, the exclusive religious mysteries of the family, at 
which no stranger was ever suffered even to be present, and his 
acceptance of the family gods as his own gods, was not less effi¬ 
cacious in making him one with the household and the kin than 
if he had opened his veins to receive their blood. And so, too, 
Houses could grow by the adoption of families, through the 
engrafting of the alien branches into this same sacred stock of 
the esoteric religion of the kindred. Whether naturally, there- 


THE EARLIEST FORMS OF GOVERNMENT. 


15 


fore, or artificially, Houses widened into tribes, and tribes into 
commonwealths, without loss of that kinship in the absence of 
which, to the thinking of primitive men, there could be no com¬ 
munion, and therefore no community, at all. 

Kinship and Religion. — In this development kinship and 
religion operated as the two chief formative influences. Reli¬ 
gion seems in most instances to have been at first only the expres¬ 
sion of kinship. The central and most sacred worship of each 
group of men, whether family or tribe, was the worship of ances¬ 
tors. At the family or communal altar the worshipper came into 
the presence of the shades of the great dead of his family or race. 
To them he did homage; from them he craved protection and 
guidance. The adopted man, therefore, when received into this 
hallowed communion with the gods of the family, accepted its 
fathers as his own, and took upon himself the most solemn 
duties and acquired the most sacred privileges of kinship. So, 
too, of the family adopted into the gens , or the gens received into 
the tribe. The new group accepted the ancestry by accepting the 
worship of the adopting House or community. 

Religion was thus quite inseparably linked with kinship. It 
may be said to have been the thought of which kinship was the 
embodiment. It was the sign and seal of the common blood, the 
expression of its oneness, its sanctity, its obligations. He who 
had entered into the bonds of this religion had, therefore, entered 
into the heart of kinship and taken of its life-blood. His blood- 
relationship was thus rendered no fiction at all to the thought of 
that day, but a solemn verity, to which every religious ceremo¬ 
nial bore impressive witness. 

The Bonds of Religion and Precedent. — The results of such 
a system of life and thought were most momentous. It is com¬ 
monplace now to remark upon English regard for precedent, and 
upon the interesting development of ‘common 9 and ‘case 9 law. 
But not even an Englishman or an American can easily conceive 
of any such reverential regard for precedent as must have resulted 
from a canonization of ancestors. We have ourselves in a meas¬ 
ure canonized our own forefathers of the revolutionary era, wor¬ 
shipping them around fourth of July altars, to the great benefit 
both of our patriotism and of our political morality. But the men 


16 


THE EARLIEST FORMS OF GOVERNMENT. 


of ’76, we are all willing to acknowledge, were at their greatest 
only men. The ancestor of the primitive man became, on the 
contrary, a god, and a god of undying power. His spirit lived 
on to bless or to curse. His favor had to be propitiated, his 
anger appeased. And herein was a terribly effective sanction 
for precedent. It was no light matter to depart from the prac¬ 
tices of these potent ancestors. To do so was to run in the face 
of the deities. It was to outrage all religious feeling, to break 
away from all the duties of spiritual kinship. Precedent was 
under such circumstances imperative. Precedent of course soon 
aggregated into custom, — such custom as it is now scarcely pos¬ 
sible to conceive of, — a supreme, uniform, imperious, infrangible 
rule of life which brought within its inexorable commands every 
detail of daily conduct. 

The Reign of Custom. — This reign of customary law was 
long and decisive. Its tendency was to stiffen social life into a 
formula. It left almost no room at all for the play of individu¬ 
ality. The family was a despotism, society a routine. There 
was for each man a rigorous drill of conformity to the custom of 
his tribe and house. Superstition strengthened every cord and 
knot of the network of observance which bound men to the prac¬ 
tices of their fathers and their neighbors. That tyranny of social 
convention which men of independent or erratic impulse nowa¬ 
days find so irksome, — that ‘tyranny of one’s next-door neigh¬ 
bor’ against which there are now and again found men bold 
enough to rebel, — had its ideal archetype in this rigid uniformity 
of custom which held ancient society in hard crystallization. 

Fixity of System the Rule, Change the Exception. — Such 
was the discipline that moulded the infancy of political society: 
within the family, the supreme will of the father; outside the 
family, the changeless standards of religious opinion. The ten¬ 
dency, of course, was for custom to become fixed in a crust too 
solid ever to be broken through. In the majority of cases, more¬ 
over, this tendency was fulfilled. Many races have never come out 
of this tutelage of inexorable custom. Many others have advanced 
only so far beyond it as those caste systems in which the law of 
status and the supremacy of immemorial custom have worked out 
their logical result in an unchanging balance of hereditary classes. 


THE EARLIEST FORMS OF GOVERNMENT. 


17 


The majority of mankind have remained stationary in one or 
another of the earliest stages of political development, their laws 
now constituting as it were ancient records out of which the 
learned may rewrite the early history of those other races whom 
primitive custom did not stagnate, but whose systems both of 
government and of thought still retain many traces (illegible 
without illumination from the facts /Of modern savage life) of a 
similar infancy. Stagnation has been the rule, progress the ex¬ 
ception. The greater part of the world illustrates in its laws and 
institutions what the rest of the world has escaped; the rest of 
the world illustrates what favorable change was capable of mak¬ 
ing out of the primitive practices with which the greater part of 
the world has remained per force content. 

Changes of System outrun Changes of Idea. —The original 
likeness of the progressive races to those which have stood still 
is witnessed by that persistency of idea of which I have already 
spoken. Progress has brought nations out of the primitive prac¬ 
tices vastly more rapidly than it has brought them out of the 
primitive ideas of political society. Practical reform has now 
and again attained a speed that has never been possible to thought. 
Instances of this so abound in the daily history of the most pro¬ 
gressive nations of the world of to-day that it ought not to be 
difficult for us to realize its validity in the world of the first days 
of society. Our own guilds and unions and orders, merely volun¬ 
tary and conventional organizations as they are, retain in their 
still vivid sense of the brotherhood of their members at least a 
reminiscence of the ideas of that early time when kinship was 
the only conceivable basis of association between man and man, 
when “ each assemblage of men seems to have been conceived as 
a Family .” 1 In England political change has made the great 
strides of the last two centuries without making the Crown 
any less the central object of the theoretical or lawyerly concep¬ 
tion of the English constitution. Every day witnesses impor¬ 
tant extensions and even alterations of the law in our courts 
under the semblance of a simple application of old rules. 
Circumstances alter principles as well as cases, but it is only the 
cases which are supposed to be altered. The principles remain, 

1 Maine, Early History of Institutions, p. 232. 


18 


THE EARLIEST FORMS OF GOVERNMENT. 


in form, the same. Men still carry their brides on wedding 
journeys, although the necessity for doing so ceased with the 
practice, once general, of stealing a bride. ‘ Good blood ’ still 
continues to work wonders, though achievement has come to be 
the only real patent of nobility in the modern world. In a thou¬ 
sand ways we are more advanced than we think we are. 

How did Change enter ? — The great question, then, is, How 
did change enter at all that great nursery of custom in which all 
nations once wore short clothes, and in which so many nations 
still occupy themselves with the superstitions and the small play 
of childhood ? How did it come about tiiat some men became 
progressive, while most did not ? This is a question by no means 
easy to answer, but there are probabilities which may throw some 
Light upon it. 

Differences of Custom. — In the first place, it is not prob¬ 
able that all the groups of men in that early time had the same 
customs. Custom was doubtless as flexible and malleable in its 
infancy as it was inflexible and changeless in its old age. In 
proportion as group separated from group in the restless days 
of the nomadic life, custom would become differentiated from 
custom. Then, after first being the cause, isolation would become 
the natural result of differences of life and belief. A family or 
tribe which had taken itself apart and built up a practice and 
opinion all its own would thereby have made itself irrevocably 
a stranger to its one-time kinsmen of other tribes. When its life 
did touch their life, it would touch to clash, and not to harmonize 
or unite. Greeks, Romans, Celts, had probably once been a single 
people ; but how unlike did they become ! 

Antagonism between Customs. — We need not specially 
spur our imaginations to realize how repugnant, how naturally 
antagonistic, to each other families dr tribes or races would be 
rendered by differences of custom. “ We all know that there is 
nothing that human beings (especially when in a low state of 
culture) are so little disposed to tolerate as divergencies of cus¬ 
tom,” says Mr. Hamerton, who is so sure of the fact that he does 


THE EARLIEST FORMS OF GOVERNMENT. 


19 


not stop to illustrate it. How ‘ odd/ if not ‘ ridiculous/ the ways 
of life and the forms of belief often seem to us in a foreign 
country, — how instinctively we pronounce them inferior to our 
own! The Chinaman manages his rice quite as skilfully with 
his ‘ chop-sticks ’ as we manage ours with our forks; and yet how 
1 queer/ how ‘ absurd ’ chop-sticks are! And so also in the 
weightier matters of social and religious practice. 

Competition of Customs. — To the view of the primitive 
man all customs, great or small, were matters of religion. His 
whole life was an affair of religion. For every detail of conduct 
he was accountable to his gods and to the religious sentiment 
of his own people. To tolerate any practices different from those 
which were sanctioned by the immemorial usage of the tribe was 
to tolerate impiety. It was a matter of the deppest moment, 
therefore, with each tribal group to keep itself uncontaminated 
by alien custom, to stamp such custom out wherever and when¬ 
ever it could be discovered. That was a time of war, and war 
meant a competition of customs. The conqueror crushed out the 
practices of the conquered and compelled them to conform to his 
own. 

The Better prevail. — Of course in such a competition the 
better custom would prevail over the worse . 1 The patriarchal 
family, with its strict discipline of the young men of the tribe, 
would unquestionably be “ the best campaigning family/’ — 
would supply the best internal organization for war. Hence, 
probably, the national aspect of the world to-day: peoples of 
patriarchal tradition occupying in unquestioned ascendency the 
choicest districts of the earth; all others thrust out into the heats 
or colds of the less-favored continents, or crowded into the for¬ 
gotten corners and valley-closets of the world. So, too, with the 
more invigorating and sustaining religions. Those tribes which 
were least intimidated by petty phantoms of superstition, least 
hampered by the chains of empty but imperative religious cere¬ 
monial, by the engrossing observance of times and seasons, having 
greater confidence in their gods, would have greater confidence in 
themselves, would be freer to win fortune by their own hands, 

1 For the best development of the whole idea of this paragraph and others 
in this connection, see Bagehot, Physics and Politics , Chap. II. 


20 


THE EARLIEST FORMS OF GOVERNMENT. 


instead of passively seeking it in the signs of the heavens or in 
the aspects of nearer nature; and so would be the surer con¬ 
querors of the earth. Religion and the family organization were 
for these early groups of kindred men the two indexes of charac¬ 
ter. In them was contained inferiority or superiority. The most 
serviceable customs won the day. 

Isolation, Stagnation. — Absolute isolation for any of these 
early groups would of course have meant stagnation; just as 
surely as contact with other groups meant war. The world, 
accordingly, abounds in stagnated nationalities; for it is full of 
instances of isolation. The great caste nations are examples. It 
is, of course, only by a figure of speech that we can speak of vast 
peoples like those of China and India as isolated, though it is 
scarcely a figure of speech to say that they are stagnated. Still 
in a very real sense even these populous nations were isolated. 
We may say, from what we discern of the movements of the 
nations from their original seats, that the races of China and 
India were the ‘ back-water ’ from the great streams of migration. 
Those great streams turned towards Europe and left these out¬ 
lying waters to subside at their leisure. In subsiding there was 
no little commotion amongst them. There were doubtless as 
many intertribal wars in the early history of China before the 
amalgamation of the vast kingdom as there have been in the his¬ 
tory of India. That same competition of custom with custom 
which took place elsewhere, also took place there. But the tribes 
which pressed into China were probably from the first much of a 
kind, with differing but not too widely contrasted customs, which 
made it possible for them to assume at a now very remote period 
a uniformity of religion and of social organization never known 
amongst the peoples that had gone to the West; so that, before 
the history that the rest of the world remembers had begun, 
China’s wall had shut her in to a safe stagnation of monotonous 
uniformity. The great Indian castes were similarly set apart in 
their vast peninsula by the gigantic mountains which piled them¬ 
selves between them and the rest of the continent. The later 
conquests which China and India suffered at the hands of Oriental 
invaders resulted in mere overlordships, which changed the desti¬ 
nation of taxes, but did not touch the forms of local custom. 


THE EARLIEST FORMS OF GOVERNMENT. 


21 


Movement and Change in the West. —It is easy to imagine 
a rapid death-rate, or at least an incessant transformation, amongst 
the customs of those races which migrated and competed in the 
West. There was not only the contact with each other which 
precipitated war and settled the question of predominance between 
custom and custom; there was also the slow but potent leaven 
of shifting scene and changing circumstance. The movement of 
the peoples was not the march of a host. It was only the slow 
progress of advancing races, its stages often centuries long, its 
delays fruitful of new habits and new aspirations. We have, 
doubtless, a type of what took place in those early days in the 
transformation of the Greeks after they had come down to the 
sea. We can dimly see them beginning a new life there. Slowly 
they acquired familiarity with their new neighbor, the sea. They 
learned its moods. They imagined new gods breathing in its 
mild or storming in its tempestuous winds. They at length 
trusted themselves to its mercy in boats. The handling of boats 
made them sailors; and, lured from island to island across that 
inviting sea, they reached those later homes of their race in Asia 
Minor. And they reached this new country changed men, their 
hearts strengthened for bolder adventure, their hands quick with 
a readier skill, their minds opened to greater enthusiasms and en¬ 
riched with warmer imaginings, their whole nature profoundly 
affected by contact with Father iEgeus. 

Migration and Conquest. — And so, to a greater or less 
extent, it must have been with other races in their movements 
toward their final seats. Not only the changes of circumstance 
and the exigencies of new conditions of life, but also the con¬ 
quests necessarily incident to those days of migration, must have 
worked great, though slow, alterations in national character. We 
know the Latins to have been of the same stock with the Greeks; 
but by the time the Latins had reached Italy they were already 
radically different in habit, belief, and capacity from the Greeks, 
who had, by other routes, reached and settled Magna Graecia. 
Conquest changes not only the conquered, but also the con¬ 
querors. Insensibly, it may be, but deeply, they are affected 


I 


22 THE EARLIEST FORMS OF GOVERNMENT. 

by the character of the subdued or absorbed races. Norman does 
not merge with Saxon without getting Saxon blood into his own 
veins, and Saxon thoughts into his own head; neither had Saxon 
overcome Celt without being himself more or less taken captive 
by Celtic superstition. And these are but historical instances of 
what must have been more or less characteristic of similar events 
in ‘ prehistoric 5 times. 

Intertribal Imitation. —There must, too, have been among 
the less successful or only partially successful races a powerful 
tendency towards imitation constantly at work, — imitation of the 
institutions of their more successful neighbors and rivals. Just 
as we see, in the histories of the Old Testament, frequent instances 
of peoples defeated by Jewish arms incontinently forsaking their 
own divinities and humbly commending themselves to the God 
of Israel, so must many another race, defeated or foiled in un¬ 
recorded wars, have forced themselves to learn the customs in 
order that they might equal the success of rival races. 

Individual Initiative and Imitation. — And this impulse 
towards imitation, powerful as between group and group, would 
of course, in times of movement and conquest, be even more 
potent amongst individual men. Such times would be rich with 
opportunity for those who had energy and enterprise. Many a 
great career could be carved out of the events of days of steady 
achievement. Men would, as pioneers in a new country or as 
leaders in war, be more or less freed from the narrow restrictions 
of hard and fast custom. They could be unconventional. Their 
individual gifts could have play. Each success would not only 
establish their right to be themselves, but would also raise up 
after them hosts of imitators. New types would find acceptance 
in the national life; and so a new leaven would be introduced. 
Individual initiative would at last be permitted a voice, even as 
against immemorial custom. 

Institutional Changes: Choice of Rulers. — It is easy to see 
how, under the bracing influences of race competition, such forces 
of change would operate to initiate and hasten a progress towards 
the perfecting of institutions and the final abolition of slavery to 
habit. And it is no less plain to see how such forces of change 
would affect the constitution of government. It is evident that, 


THE EARLIEST FORMS OF GOVERNMENT. 


23 


as has been said (p. 19), the patriarchal family did furnish the 
best campaigning materials, and that those races whose primitive 
organization was of this type did rapidly come to possess the 
most-competed-for ” parts of the earth. They did come to be 
the chief, the central races of history. But race aggregations, 
through conquest or adoption, mnst have worked considerable 
changes in the political bearings of the patriarchal principle. 
The direct line of male descent from the reputed common pro¬ 
genitor of the race could hardly continue indefinitely to be ob¬ 
served in filling the chieftainship of the race. A distinct element 
of choice—of election — must have crept in at a very early period. 
The individual initiative of which I have spoken, contributed 
very powerfully to effect this change. The oldest male of the 
hitherto reigning family was no longer chosen as of course, but 
the wisest or the bravest. It was even open to the national 
choice to go upon occasion altogether outside this succession and 
choose a leader of force and resource from some other family. 

Hereditary replaced by Political Magistracy. — Of course 
mere growth had much to do with these transformations. As 
tribes grew into nations, by all the processes of natural and 
artificial increase, all distinctness of mutual blood-relationship 
faded away. Direct common lines of descent became hopelessly 
obscured. Cross-kinships fell into inextricable confusion. Family 
government and race government became necessarily divorced, — 
differentiated. The state continued to be conceived as a Family, 
but the headship of this huge and complex family ceased to be 
natural and became political. So soon as hereditary title was 
broken in upon, the family no longer dominated the state; the 
state at last dominated the family. It often fell out that a son, 
absolutely subject to his father in the family, was by election 
made master of his father outside the family, in the state. Politi¬ 
cal had at least begun to grow away from domestic authority. 

Summary. — Enough has been said here to make plain the 
approaches to those systems of government with which we are 
familiar in the modern world. We can understand how custom 
crystallized about the primitive man ; how in the case of the ma¬ 
jority of mankind it preserved itself against all essential change; 
how with the favored minority of the race it was broken by war, 


24 


THE EARLIEST FORMS OF GOVERNMENT. 


altered by imperative circumstance, modified by imitation, and 
infringed by individual initiative; how change resulted in prog¬ 
ress ; and how, at last, kinsmen became fellow-citizens. 


Some Representative Authorities. 

Bachofen, Das Mutterrecht. 

Bagehot, Walter, Physics and Politics, N. Y., 1884. 

Coulanges, Fustel de, The Ancient City, Boston, 1882. 

Darwin , Charles, The Origin of Species, 2 vols., London, 1888. 

Draper , J. W., History of the Intellectual Development of Europe, 5th 
ed., N.Y., 1870. 

Parnell , L. R., Cults of the Greek States, 5 vols., Oxford, 1896-1909. 

Ford , H. J., The Natural History of the State, Princeton, 1915. 

Freeman , E. A., Comparative Politics, London, 1873. 

Hearn, W. E., The Aryan Household, London, 1879. 

Howard , G. E., History of Matrimonial Institutions, Chicago, 1904. 

Huxley, T. H., Evidence as to Man’s Place in Nature, London, 1863. 

Lang, Andrew, Custom and Myth, London, 1885; and article “Family,” 
in the Encyclopaedia Britannica. 

Lecky, W. E. H., History of European Morals, 3d ed., N. Y., 1913. 

Letourneau, Ch., The Evolution of Marriage, N. Y., 3d ed., London and 
N.Y., 1911. 

Lord Avebury, The Origin of Civilization and the Primitive Condition of 
Man, 6th ed., London, 1902 ; and Prehistoric Times, 7th ed., London, 
1913. 

Lyall, Sir A. C., Asiatic Studies, Religious and Social, London, 1882. 

McLennan, J. F., The Patriarchal Theory, London, 1885; and Studies in 
Ancient History, London, 1886 ; Studies in Ancient History, Second 
Series, London and N. Y., 1896. 

Maine, Sir H. S., Ancient Law, with notes by Sir Frederick Pollock, 4th 
American from 10th London ed., N. Y., 1885; Early Law and Cus¬ 
tom, N. Y., 1883, especially Chap. VII.; Early History of Institutions, 
N. Y., 1875; and Village Communities in the East and West, N. Y., 
1880. 

Mayne, J. D., Hindu Law and Custom, Madras, 1888. 

Morgan, L. H., Ancient Society, London, 1877. 

Peschel, O., The Races of Man, trans. London, 1876. 

Smith, W. Robertson, Marriage and Kinship in Early Arabia, Cambridge 
1885. 


THE EARLIEST FORMS OE GOVERNMENT. 


25 


Spencer , H., Principles of Sociology, Yol. I., Part III.; “Ceremonial In¬ 
stitutions,” and “ Political Institutions.” 

Spencer and Gillen, The Native Tribes of Central Australia. 

Starke , C. N., The Primitive Family, N. Y., 1889. 

Tylor , E. B., Early History of Mankind, London, 1878 ; Primitive Culture, 
London, 1871, 3d ed., 1891. 

Westermarck , Edward, History of Human Marriage, London, 1891. 

The classical statements of the contract theory of the origin of gov¬ 
ernment will be found in 

Hooker , Ecclesiastical Polity. 

Hobbes , Leviathan. 

Locke , John, Essays on Civil Government. 

Rousseau, J. J., The Social Contract. 


II. 


NATURE AND FORMS OF GOVERNMENT 

Government rests upon Authority and Force. — The es¬ 
sential characteristic of all government, whatever its form, is 
authority. There must in every instance be, on the one hand, 
governors, and, on the other, those who are governed. And the 
authority of governors, directly or indirectly, rests in all cases 
ultimately on force. Government, in its last analysis, is organ¬ 
ized force. Not necessarily or invariably organized armed force, 
but the will of a few men, of many men, or of a community pre¬ 
pared by organization to realize its own purposes with reference 
to the common affairs of the community ; organized, that is, to 
rule, to dominate. The machinery of government necessary to 
such an organization consists of instrumentalities fitted to 
enforce in the conduct of the common affairs of a community 
the will of the ruling men: the ruling minority, or the ruling 
majority. 

Not necessarily upon Obvious Force. —This is not, how¬ 
ever, to be interpreted too literally, or too narrowly. The force 
behind authority must not be looked for as if it were always to 
be seen or were always being exercised. That there is authority 
lodged with ruler or magistrate is in every case evident enough: 
but that that authority rests upon force is not always a fact upon 
the surface, and is therefore in one sense not always practically 
significant. In the case of any particular government, the force 
upon which the authority of its officers rests may never once for 
generations together take the shape of armed force. Happily 
there are in our own day many governments, and those among 
the most prominent, which seldom coerce their subjects, seeming 
m their tranquil, noiseless operations to run of themselves. They 

26 


KATURE AND FORMS OF GOVERNMENT. 


27 


in a sense operate without the exercise of force. But there 
is force behind them none the less because it never shows itself. 
The better governments of our day, — those which rest, not upon 
the armed strength of governors, but upon the free consent of the 
governed, — are founded upon constitutions and laws whose 
source and sanction are the habit of communities. The force 
which they embody is not the force of a dominant dynasty or of 
a prevalent minority, but the force of an agreeing majority. 
And the overwhelming nature of this force is evident in the fact 
that the minority very seldom challenge its exercise. It is latent 
just because it is understood to be omnipotent. There is force 
behind the authority of the elected magistrate, no less than 
behind that of the usurping despot, a much greater force behind 
the President of the United States than behind an autocratic 
monarch. The difference lies in the display of coercive power. 
Physical force is the prop of both, though in the one it is the 
last, while in the other it is the first, resort. 

The Governing Force in Ancient and in Modern Society. 
— These elements of authority and force in government are quite 
plain to be seen in modern society, even when the constitution 
of that society is democratic ; but they are not so easily discover¬ 
able upon a first view in primitive society. It is common nowa¬ 
days when referring to the affairs of the most progressive nations 
to speak of ‘government by public opinion/ ‘government by the 
popular voice’; and such phrases possibly describe sufficiently 
well the full-grown democratic systems. But no one intends such 
expressions to conceal the fact that the majority, which utters 
‘public opinion/ does not prevail because the minority are con¬ 
vinced, but because they are outnumbered and have against them 
not the ‘popular voice ’ only, but the ‘popular power 9 as well, — 
that it is the potential might rather than the wisdom of the ma¬ 
jority which gives it its right to rule. When once majorities 
have learned to have opinions and to organize themselves for en¬ 
forcing them, they rule by virtue of power no less than do despots 
with standing armies or concerting minorities dominating unor¬ 
ganized majorities. But, though it was clearly opinion which 
ruled in primitive societies, this conception of the might of 
majorities hardly seems to fit our ideas of primitive systems of 


28 


NATURE AND FORMS OF GOVERNMENT. 


government. What shall we say of them in connection with our 
present analysis of government? They were neither democracies 
in which the will of majorities chose the ways of government, 
nor despotisms, in which the will of an individual controlled, nor 
oligarchies, in which the purposes of a minority prevailed. 
Where shall we place the force which lay behind the authority 
exercised under them? Was the power of the father in the patri¬ 
archal family power of arm, mere domineering strength of will? 
What was the force that sustained the authority of the tribal 
chieftain or of that chief of chiefs, the king? That authority 
ivas not independent of the consent of those over whom it was 
exercised; and yet it was not formulated by that consent. That 
consent may be said to have been involuntary, inbred. It was 
born of the habit of the race. It was congenital. It consisted 
of a custom and tradition, moreover, which bound the chief no 
less than it bound his subjects. He might no more transgress the 
unwritten law of the race than might the humblest of his fellow- 
fcribesmen. He was governed scarcely less than they were. All 
were under bondage to strictly prescribed ways of life. Where, 
then, lay the force which sanctioned the authority of chief and 
sub-chief and father in this society? Not in the will of the 
ruler: that was bound by the prescriptions of custom. Not in 
the popular choice: over that too the law of custom reigned. 

The Force of the Common Will in Ancient Society. — The 
feal residence of force in such societies as these can be most easily 
discovered if we look at them under other circumstances. Nations 
still under the dominion of customary law have within historical 
times been conquered by alien conquerors; but in no such case 
did the will of the conqueror have free scope in regulating the 
affairs of the conquered. Seldom did it have any scope at all. 
The alien throne was maintained by force of arms, and taxes were 
mercilessly wrung from the subject populations; but never did 
the despot venture to change the customs of the conquered land. 
Its native laws he no more dared to touch than would a pi ince of 
the dynasty which he had displaced. He dared not play with 
the forces latent in the prejudices, the fanaticism of his subjects. 
He knew that those forces were volcanic, and that no prop of 
armed men could save his throne from overthrow and destruction 


NATURE AND FORMS OF GOVERNMENT. 


29 


should they once break forth. He really had no authority to 
govern, but only a power to despoil, — for the idea of government 
is inseparable from the conception of legal regulation. If, there¬ 
fore, in the light of such cases, we conceive the throne of such a 
society as occupied by some native prince whose authority rested 
upon the laws of his country, it is plain to see that the real force 
upon which authority rests under a government so constituted is 
after all the force of public opinion, in a sense hardly less vividly 
real than if we spoke of a modern democracy. The law inheres 
in the common will: and it is that law upon which the authority 
of the prince is founded. He rules according to the common 
will: for that will is, that immemorial custom be inviolably ob¬ 
served. The force latent in that common will both backs and 
limits his authority. 

Public Opinion, Ancient and Modern. — The fact that the 
public opinion of such societies made no deliberate choice of laws 
or constitutions need not confuse the analogy between that public 
opinion and our own. Our own approval of the government under 
which we live, though doubtless conscious and in a way voluntary, 
is largely hereditary, — is largely an inbred and inculcated appro¬ 
bation. There is a large amount of mere drift in it. Conformity 
to what is established is much the easiest habit in opinion. Our 
constructive choice even in our own governments, under which 
there is no divine canon against change, is limited to modifica¬ 
tions. The generation that saw our federal system established 
may have imagined themselves out-of-hand creators, originators 
of government; but we of this generation have taken what was 
given us, and are not controlled by laws altogether of our own 
making. Our constitutional life was made for us long ago. We 
are like primitive men in the public opinion which preserves; 
though unlike them in the public opinion which alters our insti¬ 
tutions. Their stationary common thought contained the generic 
forces of government no less than does our own progressive public 
thought. 

The True Nature of Government. —What, then, in the 
last analysis, is the nature of government? If it rests upon 
authority and force, but upon authority which depends upon the 
acquiescence of the general will and upon force suppressed, 


30 


NATURE AND FORMS OF GOVERNMENT. 


latent, withheld except under extraordinary circumstances, what 
principle lies behind these phenomena, at the heart of govern¬ 
ment? The answer is hidden in the nature of Society itself. 
Society is in no sense artificial; it is as truly natural as the 
individual man himself. As Aristotle said, man is by nature 
a social animal; his social function is as normal with him as is 
his individual function. Society, therefore, is compounded of 
the common habit and is an evolution of experience, an interlaced 
growth of tenacious relationships, a compact, living whole, 
structural, not mechanical. 

Government an Organ of Society. — Government is 
merely the executive organ of society, the organ through which 
its habit acts, through which its will becomes operative, through 
which it adapts itself to its environment and works out for itself 
a more effective life. There is clear reason, therefore, why the 
disciplinary action of society upon the individual is exceptional; 
clear reason also why the power of the despot must recognize 
certain ultimate limits and bounds; and clear reason why sudden 
or violent changes of government lead to equally violent and 
often fatal reactions and revolutions. It is only the exceptional 
individual who is not held fast to the common habit of social 
duty and comity. The despot’s power, like the potter’s, is 
limited by the characteristics of the materials in which he works, 
of the society which he manipulates ; and change which roughly 
breaks with the common thought will lack the sympathy of that 
thought, will provoke its opposition, and will inevitably be 
crushed by that opposition. Society can be changed only by 
evolution, and revolution is the antipode of evolution. The 
public order is preserved because order inheres in the character 
of society. 

The Forms of Government: their Significance. — The 

forms of government do not affect the essence of government: 
the bayonets of the tyrant, the quick concert and superior force 
of an organized minority, the latent force of a self-governed 
majority,—all these depend upon the character and develop¬ 
ment of the community. “The obedience of the subject to the 


NATURE AND FORMS OF GOVERNMENT. 


31 


sovereign has its root not in contract but in force, — the force 
of the sovereign to punish disobedience ”; 1 but that force must 
be backed by the general habit (pages 77, 80). The forms 
of government are, nevertheless, in every way most important 
to be observed, for the very reason that they express the char¬ 
acter of government, and indicate its history. They exhibit the 
stages of political development, and make clear the necessary 
constituents and ordinary purposes of government, historically 
considered. They illustrate, too, the sanctions upon which it 
rests. 

Aristotle’s Analysis of the Forms of Government. — It has 

been common for writers on politics in speaking of the several 
forms of government to rewrite Aristotle, and it is not easy to 
depart from the practice. For, although Aristotle’s enumeration 
was not quite exhaustive, and although his descriptions will not 
quite fit modern types of government, his enumeration still serves 
as a most excellent frame on which to hang an exposition of the 
forms of government, and his descriptions at least furnish points 
of contrast between ancient and modern governments by observ¬ 
ing which we can the more clearly understand the latter. 

Aristotle considered Monarchy, Aristocracy, and De¬ 
mocracy (Ochlocracy) the three standard forms of government. 
The first he defined as the rule of One, the second as the rule of 
the Few, the third as the rule of the Many. 2 Off against these 
standard and, so to say, healthful forms he set their degenerate 
shapes. Tyranny he conceived to be the degenerate shape of 
Monarchy, Oligarchy the degenerate shape of Aristocracy, and 
Anarchy (or mob-rule) the degenerate shape of Democracy. His 
observation of the political world about him led him to believe 
that there was in every case a strong, an almost inevitable, ten¬ 
dency for the pure forms to sink into the degenerate. 

The Cycle of Degeneracy and Revolution. — He outlined 
a cycle of degeneracies and revolutions through which, as he 
conceived, every State of long life was apt to pass. His idea 
was this. The natural first form of government for every state 

1 John Morley, Rousseau, Vol. II., p. 184. 

2 Not of the absolute majority, as we shall see presently when contrasting 
ancient and modern democracy (secs. 1403, 1406). 


32 


NATURE AND FORMS OF GOVERNMENT. 


would be the rule of a monarch, of a single strong man with 
supreme power. This monarch would usually hand on his king¬ 
dom to his children. They might confidently be expected to for¬ 
get those pledges and those views of the public good which had 
bound and guided him. Their rule would sink into tyranny. 
At length their tyranny would meet its decisive check at 
some Runnymede. There would be revolt; and the princely 
leaders of revolt, taking government into their own hands, would 
set up an Aristocracy. But aristocracies, though often public- 
spirited and just in their youth, always decline, in their later 
years, into a dotage of selfish oligarchy. Oligarchy is even more 
hateful to civil liberty, is even a graver hindrance to healthful 
civil life than tyranny. A class bent upon subserving only their 
own interests can devise injustice in greater variety than can a 
single despot: and their insolence is always quick to goad the 
many to hot revolution. To this revolution succeeds Democracy. 
But Democracy too has its old age of degeneracy, —an old age in 
svhich it loses its early respect for law, its first amiability of 
mutual concession. It breaks out into license and Anarchy, and 
none but a Caesar can bring it back to reason and order. The 
cycle is completed. The throne is set up again, and a new series 
of deteriorations and revolutions begins. 

Modern Contrasts to the Aristotelian Forms of Govern¬ 
ment. — The confirmations of this view furnished by the history 
of Europe since the time of Aristotle have been striking and 
numerous enough to render it still oftentimes convenient as a 
scheme by which to observe the course of political history even 
m our own days. But it is still more instructive to contrast the 
later facts of political development with this ancient exposition 
of the laws of politics. Observe, then, the differences between 
modern and ancient types of government, and the likelihood that 
the historian of the future, if not of the present and the imme¬ 
diate past, will have to record more divergencies from the cycle 
of Aristotle than correspondences with it. 

The Modern Absolute Monarchy. — In the vast absolute 
Monarchies which have grown up in Europe since Aristotle, it 
is evident that the modern monarch, if he be indeed monarch, has 


NATURE AND FORMS OF GOVERNMENT. 


33 


a much deeper and wider reach of power than had the ancient 
monarch. The monarch of our day is a Legislator; the ancient 
monarch was not. Antique society may be said hardly to have 
known what legislation was. Custom was for it the law of pub¬ 
lic as well as of private life: and custom could not be enacted. 
At any rate ancient monarchies were not legislative. The des¬ 
pot issued edicts, — imperative commands covering particular 
cases or affecting particular individuals: the Koman emperors 
were among the first to promulgate ‘constitutions , 9 — general 
rules of law to b*^ applied universally. The modern despot can 
do more even than that. He can regulate by his command pub¬ 
lic affairs not only but private as well, —can even upset local 
custom and bring all his subjects under uniform legislative con¬ 
trol. Nor is he in the least bound to observe his own laws. A 
word,— and that his own word,— will set them aside: a word 
will abolish, a word restore, them. He is absolute over his sub¬ 
jects not only, — ancient despots were that, — but over all laws 
also, — which no ancient despot was. 

Of course these statements are meant to be taken with certain 
important limitations. The modern despot as well as the ancient is bound 
by the habit of his people. He may change laws, but he may not change 
life as easily ; and the national traditions and national character, the 
rural and commercial habit of his kingdom, bind him very absolutely. 
The limitation is not often felt by the monarch, simply because he has 
himself been bred in the atmosphere of the national life and unconsciously 
conforms to it. 

The Modern Monarchy usually ‘Limited.’ — But the 

absolute monarchy is abnormal in the Europe of to-day, as 
abnormal as that of the Turk, — a belated example of those 
crude forms of politics which the rest of Europe has outgrown. 
Turning to the other monarchies of to-day, it is at once plain 
that they present the strongest contrast possible to any absolute 
monarchy ancient or modern. In Europe, with the exception of 
Germany they are ‘limited’ by the resolutions of a popular 
parliament. 1 The people have a distinct and often an imperative 
voice in the conduct of public affairs. 

Is Monarchy now succeeded by Aristocracy ? — And what 
is to be said of Aristotle’s cycle in connection with modern mon- 

i The ‘ popular ’ parliament, the Reichstag, in Germany, has no real power 
to ‘ limit ’ the autocratic Kaiser. 


34 


NATURE AND FORMS OF GOVERNMENT. 


archies? Does any one suppose it possible that when the des¬ 
potism of the Czar falls it will be succeeded by an aristocracy; 
or that when the modified authority of the emperors of Austria 
and Germany or the king of Italy still further exchanges sub¬ 
stance for shadow, a limited class will succeed to the reality of 
power? Is there any longer any place-between Monarchy and 
Democracy for Aristocracy? Has it not been crowded out ? 

English and Ancient Aristocracy contrasted. — Indeed, 
since the extension of the franchise in England to the working 
classes, no example of a real Aristocracy is left in the modern 
world. At the beginning of the nineteenth century the govern¬ 
ment of England, called a ‘ limited monarchy,’ was in reality an 
Aristocracy. Parliament and the entire administration of the 
kingdom were in the hands of the classes having wealth or nobility. 
The members of the House of Lords and the Crown together con¬ 
trolled a majority of the seats in the House of Commons. England 
was ‘represented’ by her upper classes almost exclusively. That 
Aristocracy has been set aside by the Reform Bills of 1832, 
1867, 1885, and 1918; but it is worth while to look back to it, in 
order to contrast a modern type of Aristocracy with those ancient 
aristocracies which were present to the mind of Aristotle. An 
ancient Aristocracy constituted the State; the English aristocracy 
merely controlled the State. Under the widest citizenship known 
even to ancient democracy less than half the adult male subjects 
of the State shared the franchise. The ancient Democracy itself 
was a government by a minority. The ancient Aristocracy was 
a government by a still narrower minority; and this narrow 
minority monopolized office and power not only, but citizenship 
as well. There were no citizens but they. They were the State. 
Every one else existed for the State, only they were part of it. 
In England the case was very different. There the franchise 
was not confined to the aristocrats; it was only controlled by 
them. Nor did the aristocrats of England consider themselves 
the whole of the State. They were quite conscious,—and quite 
content,—rthat they had the State virtually in their possession; 
but they looked upon themselves as holding it in trust for the 
people of Great Britain. Their legislation was in fact class 
legislation, oftentimes of a very narrow sort; but they did not 


NATURE AND FORMS OF GOVERNMENT. 


35 


think that it was. They regarded their rule as eminently advan¬ 
tageous to the kingdom; and they unquestionably had, or tried 
to have, the real interests of the kingdom at heart. They led the 
State, hut did not constitute it. 

Present and Future Prevalence of Democracy. — If 
Aristocracy seems about to disappear, Democracy seems about 
universally to prevail. Ever since the rise of popular education 
in the last century has assured a thinking weight to the masses 
of the people everywhere, the advance of democratic opinion and 
the spread of democratic institutions have been most marked 
and most significant. They have destroyed almost all pure forms 
of Monarchy and Aristocracy by introducing into them im¬ 
perative forces of popular thought and the concrete institutions 
of popular representation ; and they promise to reduce politics 
to a single form by excluding all other governing forces and 
institutions but those of a wide suffrage and a democratic repre¬ 
sentation, — by reducing all forms of government to Democracy. 

Differences of Form between Ancient and Modern 
Democracies. — The differences of form to be observed between 
ancient and modern Democracies are wide and important. 
Ancient Democracies were ‘ immediate/ while ours are ‘ mediate/ 
that is to say, representative. Every citizen of the Athenian 
State, — to take that as a type, — had a right to appear and vote 
in proper person in the popular assembly, and in those com¬ 
mittees of that assembly which acted as criminal courts; the 
modern voter votes for a representative who is to sit for him in 
the popular chamber, — he himself has not even the right of 
entrance there. This idea of representation, — even the idea of a 
vote by proxy, — was hardly known to the ancients ; but among 
us it is all-pervading. 1 Even the elected magistrate of an ancient 
Democracy was not looked upon as a representative of his fellow- 
citizens. He was the State , so far as his functions went, and so 
long as his term of office lasted. He could break through all 
law or custom, if he dared. It was only when his term had 
expired and he was again a private citizen that he could be 
called to account. There was no impeachment while in office. 
To our thought all elected to office,—whether Presidents, 

i Where the initiative and referendum have been introduced, the electors 
vote directly upon laws, but the representative svstein has been continued. 


36 


NATURE AND FORMS OF GOVERNMENT. 


ministers, or legislators, — are representatives. The limitations 
as to the size of the State involved in ancient practices and 
conceptions is obvious. A State in which all citizens are also 
legislators must of necessity be small. The modern representa¬ 
tive State has no such limitation. It may cover a continent. 

Nature of Democracy, Ancient and Modern. — The 
differences of nature to be observed between ancient and mod¬ 
ern Democracies are no less wide and important. The ancient 
Democracy was a class government. As already pointed out, 
it was only a broader Aristocracy. Its franchise was at widest 
an exclusive privilege, extending only to a minority. There 
were slaves under its heel; there were even freedmen who 
could never hope to enter its citizenship. Class subordination 
was of the essence of its constitution. From the modern Demo¬ 
cratic State, on the other hand, both slavery and class subordina^ 
tion are excluded as inconsistent with its theory, not only, but, 
more than that, as antagonistic to its very being. Its citizenship 
is as wide as its native population; its suffrage as wide as its 
qualified citizenship, — it knows no non-citizen class. And 
there is still another difference between the Democracy of 
Aristotle and the Democracy of Tocqueville and Bentham, The 
citizens of the former lived for the State; the citizen of fhe 
latter lives for himself, and the State is for him. The modern 
Democratic State exists for the sake of the individual; the indi¬ 
vidual, in Greek conception, lived for the State. The ancient 
State recognized no personal rights, — all rights were State 
rights; the modern State recognizes no State rights which are 
independent of personal rights. 

Growth of the Democratic Idea. — In making the last 
statement embrace ‘ the ancient State’ irrespective of kind and 
‘ the modern State,’ of whatever form, I have pointed out what 
may be taken as the cardinal difference between all the ancient 
forms of government and all the modern. It is a difference 
which I have already stated in another way. The democratic 
idea has penetrated more or less deeply all the advanced systems 
of government, and has penetrated them in consequence of that 
change of thought which has given to the individual an impor¬ 
tance quite independent of his membership of a State. I can 


NATURE AND FORMS OF GOVERNMENT. 37 

here only indicate the historical steps of that change of thought; 
I cannot go at any length into its causes. 

Subordination of the Individual in the Ancient State. — 
We have seen that, in the history of political society, if we have 
read that history aright, the rights of government, — the magis¬ 
tracies and subordinations of kinship, — antedate what we now 
call the rights of the individual. A man was at first nobody in 
himself; he was only the kinsman of somebody else. The father 
himself, or the chief, commanded only because of priority in 
kinship: to that all rights of all men were relative. Society was 
the unit; the individual the fraction. Man existed for society. 
He was all his life long in tutelage; only society was old enough 
to take charge of itself. The State was the only Individual. 

Individualism of Christianity and Teutonic Institu¬ 
tions. — There was no essential change in this idea for centu¬ 
ries. Through all the developments of government down to the 
time of the rise of the Eoman Empire the State continued, in 
the conception of the western nations at least, to eclipse the 
individual. Private rights had no standing as against the State. 
Subsequently many •influences combined to break in upon this 
immemorial conception. Chief among these influences were 
Christianity and the institutions of the German conquerors of 
the fifth century. Christianity gave each man a magistracy over 
himself by insisting upon his personal, individual responsibility 
to God. For right living, at any rate, each man was to have only 
his own conscience as a guide. In these deepest matters there 
must be for the Christian an individuality which no claim of his 
State upon him could rightfully be suffered to infringe. The 
German nations brought into the Romanized and partially Chris¬ 
tianized world of the fifth century an individuality of another 
sort, — the idea of allegiance to individuals (p. 101). Perhaps 
their idea that each man had a money-value which must be paid 
by any one who might slay him also contributed to the process of 
making men units instead of State fractions; but their idea of 
personal allegiance played the more prominent part in the trans¬ 
formation of society which resulted from their western conquests. 
The Roman knew no allegiance save allegiance to his State. He 
swore fealty to his imperator as to an embodiment of that State, 


38 


NATURE AND NORMS ON GOVERNMENT. 


not as to an individual. The Teuton, on the other hand, bound 
himself to his leader by a bond of personal service which the 
Roman either could not understand or understood only to despise. 
There were, therefore, individuals in the German State: great 
chiefs or warriors with a following ( comitatus ) of devoted volun¬ 
teers ready to die for them in frays not directed by the State, but 
of their own provoking (pages 96-97). There was with all 
German tribes freedom of individual movement and combination 
within the ranks. When the German settled down as master 
amongst the Romanized populations of western and southern 
Europe, his thought was led captive by the conceptions of the 
Roman law, as all subsequent thought that has known it has 
been, and his habits were much modified by those of his new 
subjects; but this strong element of individualism was not 
destroyed by the contact. It lived to constitute one of the chief 
features of the Feudal System. 

The Transitional Feudal System. —The Feudal System 
was made up of elaborate gradations of personal allegiance. 
The only State possible under that system was a disintegrate 
state embracing, not a unified people, but a hation atomized into 
its individual elements. A king there might be, but he was lord, 
not of his people, but of his barons. He was himself a baron also, 
and as such had many a direct subject pledged to serve him; but 
as king the barons were his only direct subjects; and the barons 
were heedful of their allegiance to him only when he could make 
it to their interest to be so, or their peril not to be. They were 
the kings of the people, who owed direct allegiance to them 
alone, and to the king only through them. Kingdoms were only 
greater baronies, baronies lesser kingdoms. One small part of 
the people served one baron, another part served another baron. 
As a whole they served no one master. They were not a whole: 
they were jarring, disconnected segments of a nation. Every 
man had his own lord, and antagonized every one who had not 
the same lord as he (pages 103-109). 

Rise of the Modern State. — Such a system was fatal to 
peace and good government, but it cleared the way for the rise 
of the modern State by utterly destroying the old conceptions. 
The State of the ancients had been an entity in itself, — an entity 


NATURE AND FORMS OF GOVERNMENT. 39 

to which the entity of the individual was altogether subordinate. 
The Feudal State was merely an aggregation of individuals,— 
a loose bundle of separated series of men knowing few common 
aims or actions. It not only had no actual unity: it had no 
thought of unity. National unity came at last, — in France, for 
instance, by the subjugation of the barons by the king (page 115); 
in England by the joint effort of people and barons against the 
throne, — but when it came it was the ancient unity with a differ¬ 
ence. Men were no longer State fractions; they had become 
State integers. The State seemed less like a natural, and more 
like a deliberately organized association. Personal allegiance to 
kings had everywhere taken the place of native membership of 
a body politic. Men were now subjects, not citizens. 

Renaissance and Reformation. —Presently came the 
thirteenth century with its wonders of personal adventure and 
individual enterprise in discovery, piracy, and trade. Follow¬ 
ing hard upon these, the Renaissance woke men to a philosophi¬ 
cal study of their surroundings, — and above all of their long¬ 
time unquestioned systems of thought. Then arose Luther to 
reiterate the almost forgotten truths of the individuality of men’s 
consciences, the right of individual judgment. Ere long the new 
thoughts had penetrated to the masses of the people. Reformers 
had begun to cast aside their scholastic weapons and come down 
to the common folk about them, talking their own vulgar tongue 
and craving their acquiescence in the new doctrines of deliver¬ 
ance from mental and spiritual bondage to Pope or Schoolman. 
National literatures were born. Thought had broken away from 
its exclusion in cloisters and universities and had gone out to 
challenge the people to a use of their own minds. By using their 
minds, the people gradually put away the childish things of their 
days of ignorance, and began to claim a part in affairs. Finally, 
systematized popular education has completed the story. Nations 
are growing up into manhood. Peoples are becoming old enough 
to govern themselves. 

The Modern Force of Majorities. — It is thus no acci¬ 
dent, but the outcome of great permanent causes, that there is no 
more to be found among the civilized races of Europe any sat¬ 
isfactory example of Aristotle’s Monarchies and Aristocracies. 


40 


NATURE AND FORMS OF GOVERNMENT. 


The force of modern governments is not now often the force of 
minorities. It is getting to be more and more the force of majori¬ 
ties. The sanction of every rule not founded upon sheer military 
despotism is the consent of a thinking people. Military despot¬ 
isms are now seen to be necessarily ephemeral. Only monarchs 
who are revered as seeking to serve their subjects are any longer 
safe upon their thrones. Monarchies exist only by democratic 
consent. 

New Character of Society. — And, more than that, the 
result has been to give to society a new integration. The com¬ 
mon habit is now operative again, not in acquiescence and sub¬ 
mission merely, but in initiative and progress as well. Society 
is not the unity it once was, — its members are given freer play, 
fuller opportunity for origination; but its unified character is 
again prominent. It is the Whole which has emerged from 
the disintegration of feudalism and the specialization of abso¬ 
lute monarchy. The Whole, too, has become self-conscious, and 
by becoming self-directive has set out upon a new course of 
development. 


Selected Bibliography. 

(For this and the two succeeding chapters.) 

Amos, Sheldon, Science of Politics, London, 1890. 

Aristotle, Politics. 

Beaulieu, P. Leroy, The Modern State, London, 1891. 

Burgess, John W., Political Science and Constitutional, Boston, 1891. 
Garner, J. W., Introduction to Political Science, N. Y. 

Graham, William, Socialism, 2d ed., London, 1901. 

Jellinek, Georg, Das Recht des Modernen Staates, 2d ed., Berlin, 1905. 
Lilly, W. S., First Principles in Politics, N. Y., 1899. 

Mill, J. S., On Liberty, N. Y., 1877. 

Plato, Republic. 

Ral, John, Contemporary Socialism, 2d ed., 1891. 

Ritchie, Principles of State Interference. 

Sidgwick, Henry, Elements of Politics, London, 1891. 

Spencer, Herbert, Man versus the State. 

Willoughby, W. W., The Nature of the State, N. Y., 1896. 


III. 


THE FUNCTIONS OF GOVERNMENT. 

What are the Functions of Government ? — The question 
has its own difficulties and complexities: it cannot be answered 
out of hand and by the list, as the physiologist might answer the 
question, What are the functions of the heart ? In its nature 
government is one, but in its life it is many : there are govern¬ 
ments and governments. When asked, therefore, What are the 
functions of government ? we must ask in return, Of what gov¬ 
ernment ? Different states have different conceptions of their 
duty, and so undertake different things. They have had their 
own peculiar origins, their own characteristic histories; circum¬ 
stance has moulded them; necessity, interest, or caprice has 
variously guided them. Some have lingered near those primitive 
institutions which all once knew and upheld together; others 
have quite forgotten that man ever had a political childhood and 
are now old in complex practices of national self-government. 

The Nature of the Question. —It is important to notice 
at the outset that this is in one aspect obviously a simple question 
of fact; and yet there is another phase of it, in which it becomes 
as evidently a question of opinion. The distinction is important 
because over and over again the question of fact has been con¬ 
founded with that very widely different question, What ought the 
functions of government to be f The two questions should be kept 
entirely separate in treatment. Under no circumstances may we 
instructively or safely begin with the question of opinion: the 
answer to the question of fact is the indispensable foundation of 
all sound reasoning concerning government, which is at all points 
based upon experience rather than upon theory. The facts of 
government mirror the principles of government in operation. 

41 


42 


THE FUNCTIONS OF GOVERNMENT. 


What government does must arise from what government is: 
and what government is must determine what government ought 
to do. 

Classification. — It will contribute to clearness of thought 
to observe the functions of government in two groups, I. The 
Constituent Functions, II. The Ministrant. Under the Constitu¬ 
ent I would place that usual category of governmental function, 
the protection of life, liberty, and property, together with all 
other functions that are necessary to the civic organization of 
society, — functions which are not optional with governments, 
even in the eyes of strictest laissez faire , — which are indeed 
the very bonds of society. Under the Ministrant I would range 
those other functions (such as education, posts and telegraphs, 
and the care, say, of forests) which are undertaken, not by way 
of governing , but by way of advancing the general interests of 
society, — functions which are optional, being necessary only 
according to standards of convenience or expediency, and not 
according to standards of existence; functions which assist with¬ 
out constituting social organization. 

Of course this classification is based primarily upon objective 
and practical distinctions and cannot claim philosophic complete¬ 
ness. There may be room for question, too, as to whether some 
of the functions which I class as Ministrant might not quite as 
properly have been considered Constituent; but I must here 
simply act upon my own conclusions without rearguing them, 
acknowledging by the way that the line of demarcation is not 
always perfectly clear. 

“ The admitted functions of government,” said Mr. Mill, “ em¬ 
brace a much wider field than can easily be included within the 
ring-fence of any restrictive definition, and it is hardly possible 
to find any ground of justification common to them all, except the 
comprehensive one of general expediency.” 

I. The Constituent Functions: 

(1) The keeping of order and providing for the protection of 
persons and property from violence and robbery. 


THE FUNCTIONS OF GOVERNMENT. 


43 


(2) The fixing of the legal relations between man and wife and 

between parents and children. 

(3) The regulation of the holding, transmission, and interchange 

of property, and the determination of its liabilities for 
debt or for crime. 

(4) The determination of contract rights between individuals. 

(5) The definition and punishment of crime. 

(6) The administration of justice in civil causes. 

(7) The determination of the political duties, privileges, and 

relations of citizens. 

(8) Dealings of the state with foreign powers : the preservation 

of the state from external danger or encroachment and 
the advancement of its international interests. 

These will all be recognized as functions which persist under 
every form of government. 

II. The Ministrant Functions. — It is hardly possible to 
give a complete list of those functions which I have called Minis¬ 
trant, so various are they under different systems of government. 
The following partial list will suffice, however, for the purposes 
of the present discussion : 

(1) The regulation of trade and industry. Under this head I 

would include the coinage of money and the establish¬ 
ment of standard weights and measures, laws against 
forestalling and engrossing, the licensing of trades, etc., 
as well as the great matter of tariffs, navigation laws, 
and the like. 

(2) The regulation of labor. 

(3) The maintenance of thoroughfares, — including state man¬ 

agement of railways and that great group of undertak¬ 
ings which we embrace within the comprehensive term 
‘ Internal Improvements/ 

(4) The maintenance of postal and telegraph systems, which is 

very similar in principle to (3). 

(5) The manufacture and distribution of gas, the maintenance 

of water-works, etc. 

(6) Sanitation, including the regulation of trades for sanitary 

purposes. 


44 


THE FUNCTIONS OF GOVERNMENT. 


(7) Education. 

(8) Care of the poor and incapable. 

(9) Care and cultivation of forests and like matters, such as the 

stocking of rivers with fish. 

(10) Sumptuary laws, such as ‘ prohibition ’ laws, for example. 

These are all functions which, in one shape or another, 

all governments alike have undertaken. Changed conceptions of 
the nature and duty of the state have arisen, issuing from changed 
historical conditions and deeply altered historical circumstances ; 
and part of the change which has thus affected the idea of the 
state has been a change in the method and extent of the exer¬ 
cise of governmental functions ; but changed conceptions have 
left the functions of government in kind the same. Diversities 
of conception are very much more marked than diversities of 
practice. 

History of Governmental Function: Province of the An¬ 
cient State. — Notable contrasts both of theory and of practice sepa¬ 
rate governments of the ancient omnipotent type from governments 
of the modern constitutional type. The ancient State, standing 
very near, as it did, in its thought, to that time, still more remote, 
when the State was the Kin, knew nothing of individual rights as 
contrasted with the rights of the state. “ The nations of Italy,” 
says Mommsen, “ did not merge into that of Eome more completely 
than the single Roman burgess merged in the Roman community.” 
And Greece was not a whit behind Rome in the absoluteness 
with which she held the subordination of the individual to the 
state. 

This thought is strikingly visible in the writings of Plato and 
Aristotle, not only in what they say, but also, and even more, in 
what they do not say. The ideal Republic of which Plato dreams 
is to prescribe the whole life of its citizens; but there is no sug¬ 
gestion that it is to be set up under cover of any new conception 
as to what the state may legitimately do, — it is only to make 
novel experiments in legislation under the old conception. And 
Aristotle’s objection to the utopian projects of his master is not 
that they would be socialistic (as we should say), but merely that 
they would be unwise. He does not fear that in such a republic 
the public power would prove to have been exalted too high; but 


THE FUNCTIONS OF GOVERNMENT. 


45 


speaking to the policy of the thing, he foresees that the citizens 
would be poor and unhappy. The state may do what it will, but 
let it be wise in what it does. There is no one among the Greeks 
to deny that it is the duty of the state to make its citizens happy 
and prosperous; nay, to legislate them happy, if legislation may 
create fair skies and a kind fortune; the only serious quarrel 
concerns the question, What laws are to be tried to this end ? 

Roman Conception of Private Rights. — Roman principles, 
though equally extreme, were in some respects differently cast. 
That superior capacity for the development of law, which made 
the Romans singular among the nations of antiquity, showed 
itself in respect of the functions of government in a more distinct 
division between public and private rights than obtained in the 
polity of the Greek cities. An examination of the conception of 
the state held in Rome reveals the singular framework of her 
society. The Roman family did not suffer that complete absorp¬ 
tion into the City which so early overtook the Greek family. 
Private rights were not individual rights, but family rights : and 
family rights did not so much curtail as supplement the powers 
of the community. The family was an indestructible organ of 
the state. The father of a family, or the head of a gens, was in a 
sense a member of the official hierarchy of the City, — as the king, 
or his counterpart the consul, was a greater father. Thtere was no 
distinction of principle between the power of king or consul and 
the power of a father; it was a mere difference of sphere, a divi¬ 
sion of functions. 

A son was, for instance, in some things exempt from the author¬ 
ity of the City only because he was in those things still subject, because 
his father still lived, to the dominion of that original state, the family. 
There was not in Rome that separation of the son from the family at 
majority which characterizes the Greek polity, as it now characterizes 
our own. The father continued to be a ruler, an hereditary state officer, 
within the original sphere of the family life, the large sphere of individual 
privilege and property. 

This essential unity of state and family furnishes us 
with the theoretic measure of state functions in Rome. The 
Roman burgess was subordinated, not to the public authority 
exactly, but rather to the public order , to the conservative in« 


46 


THE FUNCTIONS OF GOVERNMENT. 


tegrity of the community. He was subject to a law which 
embodied the steady, unbroken habit of the State-family. He 
was not dominated, but merged. 

Powers of the Roman Senate. — The range of state power 
in ancient times, as a range broken only by limits of habit and con¬ 
venience, is well illustrated in the elastic functions of the Roman Senate 
during the period of the Republic. With an unbroken life which kept 
it conscious of every tradition and familiar with every precedent; with 
established standards of tested experience and cautious expediency, it was 
able to direct the movements of the compact society at whose summit it 
sat, as the brain and consciousness direct the movements of the human 
body; and it is evident from the freedom of its discussions and the 
frequency of its action upon interests of every kind, whether of public 
or of private import, that the Roman state, as typified in its Senate, was 
in its several branches of family, tribe, and City, a single undivided 
whole, and that its prerogatives were limited by nothing save religious 
observance and fixed habit. Of that individual liberty which we cherish 
it knew nothing. 

Government the Embodiment of Society. — As little was 
there in Greek politics any seed of the thought which would 
limit the sphere of governmental action by principles of inalien¬ 
able individual rights. Both in Greek and in Roman conception 
government was as old as society, — was indeed nothing less 
than the express image and embodiment of society. In govern¬ 
ment society lived and moved and had its being. Society and 
government were one, in some such sense as the spirit and 
body of man are one: it was through government, as through 
mouth and eyes and limbs, that society realized and gave effect 
to its life. Society’s prejudices, habits, superstitions, did 
indeed command the actions of government; but only because 
society and government were one and the same, not because they 
were distinct and the one subordinate to the other. In plain 
terms, the functions of government had no limits of principle, 
but only certain limits of wont and convenience, and the object 
of administration was nothing less than to help society on to all 
its ends : to speed and facilitate all social undertakings. So far as 
full citizens of the state were concerned, Greek and Roman alike 
was what we should call a socialist; though he was too much in the 
world of affairs and had too keen an appreciation of experience, 


THE FUNCTIONS OF GOVERNMENT. 


47 


too keen a sense of the sane and possible, to attempt the Utopias 
of which the modern socialist dreams, and with which the ancient 
citizen’s own writers sometimes amused him. He bounded his 
politics by common sense, and so dispensed with ‘ the rights of 
man.’ 

Feudalism: Functions of Government Functions of Pro¬ 
prietorship. — Individual rights, after having been first heralded 
in the religious world by the great voice of Christianity, broke 
into the ancient political world in the person of the Teuton. But 
the new politics which the invader brought with him was not 
destined to establish at once democratic equality: that was a 
work reserved for the transformations of the modern world 
During the Middle Ages, government, as we conceive it, may 
be said to have suffered eclipse. In the Feudal System the 
constituent elements of government fell away from each other. 
Society was drawn back to something like its original family 
groups. Conceptions of government narrowed themselves to 
small territorial connections. Men became sovereigns in their 
own right by virtue of owning land in their own right. There 
was no longer any conception of nations or societies as wholes. 
Union there was none, but only interdependence. Allegiance 
bowed, not to law or to fatherhood, but to ownership. The 
functions of government under such a system were simply the 
functions of proprietorship, of command and obedience: “ I say 
unto one, Go, and he goeth; and to another, Come, and he 
cometh; and to my servant, Do this, and he doeth it.” The 
public function of the baron was to keep peace among his liege¬ 
men, to see that their properties were enjoyed according to the 
custom of the manor (if the manor had been suffered to acquire 
custom on any point), and to exact fines of them for all privi¬ 
leges, whether of marrying, of coming of age, or of making a 
will. The baronial conscience, bred in cruel, hardening times, 
was the only standard of justice; the baronial power the only 
conclusive test of prerogative. 

This was between baron and vassal. Between baron 
and baron the only bond was a nominal common allegiance to a 
distant king, who was himself only a greater baron. For the 
rest there was no government, but only diplomacy and warfare. 


48 


THE FUNCTIONS OF GOVERNMENT. 


Government lived where it could and as it could, and was for 
the most part divided out piecemeal to a thousand petty holders. 
Armed feuds were the usual processes of justice. 

The Feudal Monarchy. — The monarchy which grew 
out of the ruins of this disintegrate system concentrated au¬ 
thority without much changing its character. The old idea, 
born of family origins, that government was but the active au¬ 
thority of society, the magistrate but society’s organ, bound by 
society’s immemorial laws, had passed utterly away, and govern- 
ment had become the personal possession of one man. The 
ruler did not any longer belong to the state; the state belonged 
to him: he was himself the state, as the rich man may be said to 
be his possessions. The Greek or Roman official was wielded by 
the community. Not so the king who had swept together into 
his own lap the powers once broadcast in the feudal system: he 
wielded the community. Government breathed with his breath, 
and it was its function to serve him. The state had become, by 
the processes of the feudal development, his private estate. 

Modern De-socialization of the State. — The reaction from 
such conceptions, slow and for the most part orderly in England, 
sudden and violent, because long forcibly delayed, on the Conti¬ 
nent, was natural, and indeed inevitable. When it came it was 
radical; but it did not swing the political world back to its old- 
time ideas; it turned it aside rather to new. The ancient man 
had had no thought but to live loyally the life of society; but it 
became the object of the revolutionist and the democrat of the 
new order of things to live his own life. The antiqhb citizen’s 
virtues were not individual in their point of view, but social; 
whereas our virtues are almost entirely individual in their motive, 
social only in some of their results. 

In brief, the modern State has been largely de-socialized. 
The modern idea is this: the state no longer absorbs the indi¬ 
vidual ; it only serves him. The state, as it appears in its organ, 
the government, is the representative of the individual, and not 
his representative even except within the definite commission of 
constitutions ; while for the rest each man makes his own social 
relations. ‘ The individual for the State ’ has been reversed and 
made to read, ‘The State for the individual.’ 


THE FUNCTIONS OF GOVERNMENT. 


40 


More Changes of Conception than of Practice. — Such are 
the divergencies of conception separating modern from ancient poli¬ 
tics, divergencies at once deep and far-reaching. How far have 
such changes of thought been accompanied by changes of func¬ 
tion ? By no means so far as might be expected. Apparently the 
new ideas which have been given prevalence in politics from time 
to time have not been able to translate themselves into altered 
functions, but only into somewhat curtailed functions, breeding 
rather a difference of degree than a difference of kind. iCven 
under the most liberal of our modern constitutions we still meet 
government in almost every field of social endeavor. Our modern 
life is so infinitely wide and complex, it is true, that we may go 
great distances in any field of enterprise without receiving either 
direct aid or direct check from government; but that is only be¬ 
cause every field of enterprise is vastly big nowadays, not because 
government is not somewhere in it: and we know that the tend¬ 
ency is for governments to make themselves everywhere more and 
more conspicuously present. We are conscious that we are by 
no means in the same case with the Greek or Homan: the state is 
ours, not we the state’s. But we know at the same time that the 
tasks of the state have not been much diminished. Perhaps we 
may say that the matter stands thus : what is changed is not the 
activities of government but only the morals, the conscience of 
government. Government may still be doing substantially the 
same things as of old ; but an altered conception of its responsi¬ 
bility deeply modifies the way in which it does them. Social conven¬ 
ience and advancement are still its ultimate standard of conduct, 
just as if it were still itself the omnipotent impersonation of 
society, the master of the individual; but it has adopted new 
ideas as to what constitutes social convenience and advancement. 
Its aim is to aid the individual to the fullest and best possible 
realization of his individuality, instead of merely to the full 
realization of his sociality. Its plan is to create the best and fairest 
opportunities for the individual; and it has discovered that the way 
to do this is by no means itself to undertake the administration 
of the individual by old-time futile methods of guardianship. 

Functions of Government much the Same now as always. 
— This is indeed a great and profound change; but it is none the 


50 


THE FUNCTIONS OF GOVERNMENT. 


(ess important to emphasize the fact that the functions of govern 
ment are still, when catalogued, found to be much the same both 
in number and magnitude that they always were. Government 
does not stop with the protection of life, liberty, and property, as 
some have supposed; it goes on to serve every convenience of 
society. Its sphere is limited only by its own wisdom, alike where 
republican and where absolutist principles prevail. 

The State’s Relation to Property. — A very brief examina¬ 
tion of the facts suffices to confirm this view. Take, for example, 
the state’s relation to property, its performance of one of the 
chief of those functions which I have called Constituent. It is 
in connection with this function that one of the most decided con¬ 
trasts exists between ancient and modern political practice; and 
yet we shall not find ourselves embarrassed to recognize as natural 
the practice of ancient states touching the right of private prop¬ 
erty. Their theory was extreme, but, outside of Sparta, their 
practice was moderate. 

In Sparta. — Consistent, logical Sparta may serve as the 
point of departure for our observation. She is the standing clas¬ 
sical type of exaggerated state functions and furnishes the most 
extreme example of the antique conception of the relations of the 
state to property. In the early periods of her history at least, 
besides being censor, pedagogue, drill sergeant, and housekeeper to 
her citizens, she was also universal landlord. There was a distinct 
reminiscence in her practice of the time when the state was the 
family, and as such the sole owner of property. She was regarded 
as the original proprietor of all the land in Laconia, and individ¬ 
ual tenure was looked upon as rather of the nature of a usufruct 
held of the state and at the state’s pleasure than as resting upon 
any complete or indefeasible private title. 

Peculiar Situation of the Spartans. — There were in Sparta 
special reasons for the persistence of such a system. The Spartans had 
come into Laconia as conquerors, and the land had first of all been tribal 
booty. It had been booty of which the Spartan host as a whole, as a 
state, had had the dividing, and it had been the purpose of the early 
arrangement to make the division of the land among the Spartan families 
as equal as possible. Nor did the state resign the right of disposition in 
making this first distribution. It remained its primary care to keep its 
citizens, the favored Spartiatoe , upon an equal footing of fortune, to the 


THE FUNCTIONS OF GOVERNMENT. 


51 


end that they might remain rich in leisure, and so be the better able to 
live entirely for the service of the state, which was honorable, to the 
avoidance of that pursuit of wealth which was dishonorable. The state, 
accordingly, undertook to administer the wealth of the country for the 
benefit of its citizens. When grave inequalities manifested themselves in 
the distribution of estates it did not hesitate to resume its proprietary 
rights and effect a reapportionment; no one dreaming, the while, of call¬ 
ing its action confiscation. It took various means for accomplishing its 
ends. It compelled rich heiresses to marry men without patrimony ; and 
it grafted the poor citizen upon a good estate by means of prescribed 
adoption. No landed estate could be alienated either by sale or testament 
from the family to which the state had assigned it unless express legislative 
leave were given. In brief, in respect of his property the citizen was both 
ward and tenant of the state. 

Decay of the System. — As the Spartan state decayed this 
whole system was sapped. Estates became grossly unequal, as 
did also political privileges even among the favored Spartiatce. 
But these changes were due to the decadence of Spartan power 
and to the degeneration of her political fibre in days of waning 
fortune, not to any conscious or deliberate surrender by the state 
of its prerogatives as owner, guardian, and trustee. She had 
grown old and lax simply; she had not changed her mind. 

In Athens. — When we turn to Athens we experience a 
marked change in the political atmosphere, though the Athenians 
hold much the same abstract conception of the state. Here men 
breathe more freely and enjoy the fruits of their labor, where 
labor is without reproach, with less restraint. Even in Athens 
there remain distinct traces, nevertheless, of the family duties 
the state. She too, like Sparta, felt bound to dispose properly of 
eligible heiresses. She did not hesitate to punish with heavy for¬ 
feiture of right ( atimia ) those who squandered their property in 
dissolute living. There was as little limit in Athens as in 
Sparta to the theoretical prerogatives of the public authority. 
The freedom of the citizen was a freedom of indulgence rather 
than of right: he was free because the state refrained, — as a 
privileged child, not as a sovereign under Rousseau’s Law of 
Nature. 

In Rome. —When we shift our view to republican Rome 
we do not find a simple city omnipotence like that of Greece, in 


52 


THE FUNCTIONS OF GOVERNMENT. 


which all private rights are sunk. The primal constituents of 
the city yet abide in shapes something like their original. Roman 
society consists of a series of interdependent links: the family 
the gens, the city. The aggregate, not the fusion, of these makes 
up what we should call the state. But the state, so made up, was 
omnipotent, through one or other of its organs, over the indi¬ 
vidual. Property was not private in the sense of being individ¬ 
ual; it vested in the family, which was, in this as in other 
respects, an organ of the state. Property was not conceived of as 
state property, because it had remained the undivided property of 
the family. The father, as a ruler in the immemorial hierarchy 
of the government, was all-powerful trustee of the family estates; 
individual ownership there was none. 

Under Modern Governments.— We with some justice 
felicitate ourselves that to this omnipotence of the ancient state 
in its relations to property the practice of our own governments 
offers the most pronounced contrasts. But the point of greatest 
interest for us in the present connection is this, that these con¬ 
trasts are contrasts of 'policy , not of povjer. To what lengths it 
will go in regulating property rights is for each government a 
question of principle, which it must put to its own conscience, 
and which, if it be wise, it will debate in the light of political 
history: but every government must regulate property in one 
way or another and may regulate it as much as it pleases. If the 
ancient state was regarded as the ultimate owner, the modern 
state is regarded as the ultimate heir of all estates. Failing 
other claimants, property escheats to the state. If the modern 
state does not assume, like the ancient, to administer their prop¬ 
erty upon occasion for competent adults, it does administer their 
property upon occasion for lunatics and minors. The ancient 
state controlled slaves and slavery. The modern state has been 
quite as absolute: it has abolished slaves and slavery. The 
modern state, no less than the ancient, sets rules and limitations 
to inheritance and bequest. Most of the more extreme and hurt¬ 
ful interferences with rights of private ownership government has 
abandoned, one may suspect, rather because of difficulties of ad¬ 
ministration than because of difficulties of conscience. It is of the 
nature of the state to regulate property rights; it is of the policy 


THE FUNCTIONS OF GOVERNMENT. 


53 


of the state to regulate them more or less. Administrators must 
regard this as one of the Constituent functions of political society. 

The State and Political Rights. — Similar conclusions 
may be drawn from a consideration of the contrasts which exist 
in the field of that other Constituent function which concerns the 
determination of political rights, — the contrasts between the 
status of the citizen in the ancient state and the status of the citi¬ 
zen in the modern state. Here also the contrast, as between state 
and state, is not one of power, but one of principle and habit 
rather. Modern states have often limited as narrowly as did the 
ancient the enjoyment of those political privileges which we 
group under the word Franchise. They, too, as well as the 
ancient states, have admitted slavery into their systems; they 
too have commanded their subjects without moderation and 
fleeced them without compunction. But for all they have been 
so omnipotent, and when they chose so tyrannical, they have 
seldom insisted upon so complete and unreserved a service of the 
state by the citizen as was habitual to the political practice of 
both the Greek and the Roman worlds. The Greek and the 
Roman belonged each to his state in a quite absolute sense. He 
was his own in nothing as against the claims of his city upon 
him: he freely acknowledged all his privileges to be but conces* 
sions from his mother, the commonwealth. Tho'se privileges 
accrued to him through law, as do ours; but law was to him 
simply the will of the organized community; never, as we know 
it in our constitutions, a restraint upon the will of the organized 
community. He knew no principles of liberty save only those 
which custom had built up: which inhered, not in the nature of 
things, not in abstract individuality, but in the history of affairs, 
in concrete practice. His principles were all precedents. Never¬ 
theless, however radically different its doctrines, the ancient state 
was not a whit more completely master touching laws of citizen¬ 
ship than the state of to-day is. 

As Regards the State’s Ministrant Functions. — Of the 
Ministrant, no less than of the Constituent functions, the same 
statement may be made, that practically the state has been 
relieved of very little duty by alterations of political theory. It 
is natural enough that in the field of the Constituent functions 


54 


THE FUNCTIONS OF GOVERNMENT. 


the state should serve society now as always; in this field of th« 
Ministrant functions one would expect the state to be less active 
now than formerly. But there is in fact no such difference : gov¬ 
ernment does now whatever experience permits or the times demand ; 
and though it does not do exactly the same things it still does 
substantially the same kind of things that the ancient state did. 
It will conduce to clearness if I set forth my illustrations of this 
in the order of the list of Ministrant functions which I have given 
(page 43). 

(1) The State in Relation to Trade. — All nations have 
habitually regulated trade and commerce. In the most remote 
periods of which history has retained any recollection the regu¬ 
lation of trade and commerce was necessary to the existence of 
government. The only way in which communities which were 
then seeking to build up a dominant power could preserve an 
independent existence and work out an individual development 
was to draw apart to an absolutely separate life. Commerce 
meant contact; contact meant contamination: the only way in 
which to develop character and achieve cohesion was to avoid 
intercourse. In the classical states this stage is passed and 
trade and commerce are regulated for much the same reasons 
that induce modern states to regulate them, in order, that is, to 
secure commercial advantage as against competitors or in order 
to serve the fiscal needs of the state. Athens and Sparta and 
Rome, too, regulated the corn trade for the purpose of securing 
for their citizens full store of food. In the Middle Ages the 
feuds and highway brigandage of petty lords loaded commerce 
with fetters of the most harassing sort, except where the free 
cities could by militant combination keep open to it an unhin¬ 
dered passage to and fro between the great marts of North and 
South. As the mediaeval states emerge into modern times we 
find trade and commerce handled by statesmen as freely as ever, 
but according to the reasoned policy of the mercantilist thinkers; 
and in our own days according to still other conceptions of 
national advantage. 

(2) The State in Relation to Labor. — Labor, too, has 
always been regulated by the state. By Greek and Roman the 
labor of the handicrafts and of agriculture, all manual toil 


THE FUNCTIONS OF GOVERNMENT. 


55 


indeed, was for the most part given to slaves to do; and of course 
law regulated the slave. In the Middle Ages the labor which 
was not agricultural and held in bondage to feudal masters was 
in the cities, where it was rigidly ordered by the complex rules 
of the guild system, as were trade also and almost all other like 
forms of making a livelihood. Where, as in England, labor in part 
escaped from the hard service of the feudal tenure the state stepped 
in with its persistent “ statutes of laborers ” and sought to tie 
the workman to one habitation and to one rate of wages. ( The 
rustic must stay where he is and must receive only so much pay,’ 
was its command. Apparently, however, all past regulation of 
labor was but elementary as compared with the labor legislation 
being tried by the governments of our own day. The birth and 
development of the modern industrial system has changed every 
aspect of the matter; and this fact reveals the true character of 
the part which the state plays in the case. The rule would 
seem to be that in proportion as the world’s industries grow 
must the state advance in its efforts to assist the industrious to 
advantageous relations with each other. The tendency to regu¬ 
late labor rigorously and minutely is as strong in England, where 
the state is considered the agent of the citizen, as it was in 
Athens, where the citizen was deemed the child and tool of the 
state, and where the workman was a slave. 

(3) Regulation of Corporations. — The regulation of 
corporations is but one side of the modern regulation of the in¬ 
dustrial system, and is a function added to the antique list of 
governmental tasks. 

(4) The State and Public Works.—The maintenance of 
thoroughfares may be said to have begun with permanent empire, 
that is to say, for Europe, with the Romans. For the Romans, 
indeed, it was first a matter of moving armies, only secondarily a 
means of serving commerce; whereas with us the highway is 
above all things else an artery of trade, and armies use it only 
when commerce stands still at the sound of drum and trumpet. 
The building of roads may therefore be said to have begun by 
being a Constituent function and to have ended by becoming a 
Ministrant function of government. But the same is not true of 
other public works, of the Roman aqueducts and theatres and 


56 


THE FUNCTIONS OF GOVERNMENT. 


baths, and of modern internal improvements. They, as much as 
the Roman tax on old bachelors, are parts, not of a scheme of 
governing, but of plans for the advancement of other social aims, 
— for the administration of society. Because in her conception 
the community as a whole was the only individual, Rome thrust 
out as of course her magnificent roads to every quarter of her 
vast territory, considered no distances too great to be traversed 
by her towering aqueducts, deemed it her duty to clear river 
courses and facilitate by every means both her commerce and her 
arms. And the modern state, though holding a deeply modified 
conception of the relations of government to society, still follows 
a like practice. If in most instances our great iron highways are 
left to private management, it is oftener for reasons of con¬ 
venience than for reasons of conscience. 1 

(5) Administration of the Conveniences of Society.—> 
Similar considerations apply in the case of that modern instru¬ 
mentality, the public letter-post, in the case of the still more 
modern manufacture of gas, and in the case of the most modern 
telegraph and telephone. The modern no less than the ancient 
government unhesitatingly takes a hand in administering the con¬ 
veniences of society. 

(6) Sanitation. — Modern governments, like the govern¬ 
ment of Rome, maintain sanitation by means of police inspection 
of baths, taverns, and houses of ill fame, as well as by drainage; 
and to these they add hospital relief, water supply, quarantine, 
and a score of other means. 

(7) Public Education. — Our modern systems of public 
education are more thorough than the ancient, notwithstanding 
the fact that we regard the individual as something other than a 
mere servant of the state, and educate him first of all for himself. 

(8) Sumptuary Laws. —In sumptuary laws ancient states 
of course far outran modern practice. Modern states have fore¬ 
gone most attempts to make citizens virtuous or frugal by law. 
But even we have our prohibition enactments; and we have had 
our fines for swearing. 

i This is clearly shown in the taking over of the railroads by the govern¬ 
ment for the period of the war. 


THE FUNCTIONS OF GOVERNMENT. 


57 


Summary. — Apparently it is safe to say with regard to 
the functions of government taken as a whole that, even as be¬ 
tween ancient and modern states, uniformities of practice far out¬ 
number diversities of practice. One may justly conclude, not in¬ 
deed that the restraints which modern states put upon themselves 
are of little consequence, or that altered political conceptions are 
not of the greatest moment in determining important questions 
of government and even the whole advance of the race; but 
that it is rather by gaining practical wisdom, rather by long 
processes of historical experience, that states modify their prac¬ 
tices. New theories are subsequent to new experiences. 


IV. 


THE OBJECTS OF GOVERNMENT. 

Character of the Subject.—Political interest and con¬ 
troversy have centred nowhere more acutely than in the question, 
What are the proper objects of government? This is one of those 
difficult questions upon which it is possible for many sharply 
opposed views to be held apparently with almost equal weight 
of reason. Its central difficulty is this, that it is a question 
which can be answered, if answered at all, only by the aid of a 
broad and careful wisdom whose conclusions are based upon the 
widest possible inductions from the facts of political experience 
in all its phases. Such wisdom is quite beyond the capacity of 
most thinkers and actors in the field of politics; and the conse¬ 
quence has been that this question, perhaps more than any other 
in the whole scope of political science, has provoked great wars 
of doctrine. 

The Extreme Views held. — What part shall govern¬ 
ment play in the affairs of society ? — that is the question which 
has been the gauge of controversial battle. What ought the func¬ 
tions of government to he 9 On the one hand there are extremists 
who cry constantly to government, ‘ Hands off/ ‘laissez faire’ 
1 laissez passer,’ who look upon every act of government which 
is not merely an act of police with jealousy; who regard govern¬ 
ment as necessary, but as a necessary evil; and who would have 
government holdback from everything which could by any possi¬ 
bility be accomplished by individual initiative and endeavor. On 
the other hand, there are those who, with equal extremeness of 
view in the opposite direction, would have society lean fondly 
upon government for guidance and assistance in every affair of 
life ; who, captivated by some glimpse of public power and benefi 

58 


THE OBJECTS OF GOVERNMENT. 


59 


cence caught in the pages of ancient or mediaeval historian, or by 
some dream of cooperative endeavor cunningly imagined by the 
great fathers of Socialism, believe that the state can be made a 
wise foster mother to every member of the family politic. Be¬ 
tween these two extremes, again, there are all grades, all shades 
and colors, all degrees of enmity or of partiality to state action. 

Historical Foundation for Opposite Views.—Enmity to 
exaggerated state action, even a keen desire to keep that action 
down to its lowest possible terms, is easily furnished with im¬ 
pressive justification. It must unreservedly be admitted that 
history abounds with warnings of no uncertain sort against in¬ 
dulging the state with a too great liberty of interference with 
the life and work of its citizens. Much as there is that is at¬ 
tractive in the political life of the city states of Greece and 
Rome, in which the public power was suffered to be omnipotent, 
— their splendid public spirit, their incomparable organic whole¬ 
ness, their fine play of rival talents, serving both the common 
thought and the common action, their variety, their conception of 
public virtue,—there is also much to blame, — their too wanton 
invasion of that privacy of the individual life in which alone 
family virtue can dwell secure, their callous tyranny over mi¬ 
norities in matters which might have been left to individual 
choice, their sacrifice of personal independence for the sake of 
public solidarity, their hasty average judgments, their too confi¬ 
dent trust in the public voice. They, it is true, could not have 
had the individual liberty which we cherish without breaking 
violently with their own history, with the necessary order of 
their development; but neither can we, on the other hand, imi¬ 
tate them without an equally violent departure from our own 
normal development and a reversion to the now too primitive 
methods of their pocket republics. 

Unquestionable as it is that mediaeval history affords 
many seductive examples of an absence of grinding, heartless 
competition and a strength of mutual interdependence, confidence, 
and helpfulness between class and class such as the modern econ¬ 
omist may be pardoned for wishing to see revived; and true 
though it be that the history of Prussia gives at least colorable 
justification to the opinion that state interference may under some 


60 


THE OBJECTS OF GOVERNMENT. 


circumstances be of benefit for the industrial upbuilding of a 
state, it must, on the other hand, be remembered that neither the 
feudal system, nor the mediaeval guild system, nor the paternalism 
of Frederic the Great can be rehabilitated now that the revolutions 
in industry, in church, and in state have been wrought which have 
been witnessed since the begimiing of the nineteenth century ; and 
that, even if these systems of the past could be revived, we 
should be sorely puzzled to reinstate their blessings without re- 
storing at the same time their acknowledged evils. No student 
of history can wisely censure those who protest against state 
paternalism. 

The State a Beneficent and Indispensable Organ of 
Society. — It by no means follows, nevertheless, that because the 
state may unwisely interfere in the life of the individual, it 
must be pronounced in itself and by nature a necessary evil. 
It is no more an evil than is society itself. It is the organic 
body of society: without it society would be hardly more than 
a mere abstraction. If the name had not been restricted to a 
single, narrow, extreme, and radically mistaken class of think¬ 
ers, we ought all to regard ourselves and to act as socialists , that 
is, believers in the wholesomeness and beneficence of the body 
politic. 

If the history of society proves anything, it proves the absolute 
naturalness of government, its rootage in the nature of man, its 
origin in kinship, and its identification with all that makes man 
superior to the brute creation. Individually man is but poorly 
equipped to dominate other animals: his lordship comes by com¬ 
bination, his strength is concerted strength, his supremacy is the 
supremacy of union. Outside of society man’s mind can avail 
him little as an instrument of supremacy ; and government is the 
visible form of society. If society itself be not an evil, neither 
surely is government an evil, for government is the indispensable 
organ of society. 

Every means, therefore, by which society may be perfected 
through the instrumentality of government, every means by 
which individual rights can be fitly adjusted and harmonized 
with public duties, by which individual self-development may be 
made at once to serve and to supplement social development, 


THE OBJECTS OF GOVERNMENT. 


61 


ought certainly to be diligently sought, and, when found, sedu¬ 
lously fostered by every friend of society. Such is the view to 
which every true lover of his kind ought to adhere with the full 
grip of every noble affection that is in him. 

Socialism and the Modern Industrial Organization. — It 
is possible, indeed, to understand and even in a measure to sym¬ 
pathize with, the enthusiasm of those special classes whom we 
have dubbed with the too great name of ‘ Socialists.’ The 
schemes of social reform and regeneration which they support 
with so much ardor, however mistaken they may be, have the 
right end in view: they seek to bring the individual with his 
special interests, personal to himself, into complete harmony with 
society with its general interests, common to all. Their method 
is always some sort of cooperation, meant to perfect mutual help¬ 
fulness. They speak, too, a revolt from selfish, misguided in¬ 
dividualism ; and certainly modern individualism has much about 
it that is hateful, too hateful to last. 

The modern industrial organization has so distorted competition 
as sometimes to put it into the power of some to tyrannize over 
many, as to enable the rich and the strong to combine against 
the poor and the weak. It has given a woful material meaning 
to that spiritual law that “ to him that hath shall be given, 
and from him that hath not shall be taken away even the little 
that he seemeth to have.” It has magnified that self-interest 
which is grasping selfishness and has thrust out love and com¬ 
passion not only, but free competition in part, as well. Surely 
it would be better, exclaims the Socialist, altogether to stamp 
out competition by making all men equally subject to the public 
order, to an imperative law of social cooperation! But the 
Socialist mistakes : it is not competition that kills, but unfair 
competition, the pretence and form of it where the substance 
and reality of it cannot exist. 

A Middle Ground. — And there is a middle ground. The 
schemes which Socialists have proposed society cannot accept and 
live; and no scheme which involves the complete control of the 
individual by government can be devised which differs from theirs 
very much for the better. A truer doctrine must be found, which 


62 


THE OBJECTS OF GOVERNMENT. 


gives wide freedom to the individual for his self-development and 
yet guards that freedom against the competition that kills, and 
reduces the antagonism between self-development and social 
development to a minimum. And such a doctrine can be formu¬ 
lated, surely, without too great vagueness. 

The Objects of Society the Objects of Government. — Gov¬ 
ernment is the organ of society, its only potent and universal 
instrument: its objects must be the objects of society. What, 
then, are the objects of society ? What is society ? It is an 
association of individuals organized for mutual aid. Mutual 
aid to what? To self-development. The hope of society lies in 
an infinite individual variety, in the freest possible play of indi¬ 
vidual forces: only in that can it find that wealth of resource 
which constitutes civilization, with all its appliances for satisfying 
human wants and mitigating human sufferings, all its incitements 
to thought and spurs to action. It should be the end of government 
to assist in accomplishing the objects of organized society. There 
must be constant adjustments of governmental assistance to the 
needs of a changing social and industrial organization. Not license 
of interference on the part of government, but only strength, and 
adaptation of regulation. The regulation that I mean is not inter¬ 
ference : it is the equalization of conditions, so far as possible, in 
all branches of endeavor; and the equalization of conditions is the 
very opposite of interference. 

Every rule of development is a rule of adaptation, a rule 
for meeting ‘ the circumstances of the case 9 ; but the circumstances 
of the case, it must be remembered, are not, so far as government 
is concerned, the circumstances of any individual case, but the 
circumstances of society’s case, the general conditions of social 
organization. The case for society stands thus: the individual 
must be assured the best means, the best and fullest opportunities, 
for complete self-development: in no other way can society itself 
gain variety and strength. But one of the most indispensable 
conditions of opportunity for self-development government alone, 
society’s controlling organ, can supply. All combinations which 
necessarily create monopoly, which necessarily put and keep in¬ 
dispensable means of industrial or social development in the 
hands of a few, and those few, not the few selected by society 


THE OBJECTS OF GOVERNMENT. 


03 


itself, but the few selected by arbitrary fortune, must be under 
either the direct or the indirect control of society. To society alone 
can the power of dominating by combination belong. It cannot 
suffer any of its members to enjoy such a power for their own pri¬ 
vate gain independently of its own strict regulation or oversight. 

Natural Monopolies. — It is quite possible to distinguish 
natural monopolies from other classes of undertakings; their dis¬ 
tinctive marks are thus enumerated by Sir T. H. Farrer in his 
excellent little volume on The State in its Relation to Trade which 
forms one of the well-known English Citizen series: 1 

“ 1. What they supply is a necessary,” a necessary, that is, to 
life, like water, or a necessary to industrial action, like railroad 
transportation. 

“2. They occupy peculiarly favored spots or lines of land.” 
Here again the best illustration is afforded by railroads or by 
telegraph lines, by water-works, etc. 

“ 3. The article or convenience they supply is used at the place 
and in connection with the plant or machinery by which it is sup¬ 
plied ”; that is to say, at the favored spots or along the favored 
lines of land. 

“ 4. This article or convenience can in general be largely, if not 
indefinitely increased, without proportionate increase in plant and 
capital ”; that is to say, the initial outlay having been made, the 
favored spot or line of land having been occupied, every subse¬ 
quent increase of business will increase profits because it will not 
proportionately, or anything like proportionately, increase the 
outlay for services or machinery needed. Those who are outside 
of the established business, therefore, are upon an equality of com¬ 
petition neither as regards available spots or lines of land nor as 
regards opportunities to secure business in a competition of rates. 

“ 5. Certain and harmonious arrangement, which can only be 
attained by unity, are paramount considerations.” Wide and 
systematic organization is necessary. 

Such enterprises invariably give to a limited number of persons 
the opportunity to command certain necessaries of life, of comfort, or of 
industrial success against their fellow-countrymen and for their own 

i P. 71. Sir Thomas Farrer was Permanent Secretary of the English 
Board of Trade. 


64 


THE OBJECTS OF GOVERNMENT. 


advantage. Once established in any field, there can be no real competi 
tion between them and those who would afterwards enter that field. No 
agency should be suffered to have such control except a public agency 
which may be compelled by public opinion to act without selfish narrow¬ 
ness, upon perfectly equal conditions as towards all, or some agency upon 
which the government may keep a strong hold of regulation. 

Control not necessarily Administration. — Society can by 
no means afford to allow the use for private gain and without 
regulation of undertakings necessary to its own healthful and 
efficient operation and yet of a sort to exclude equality in compe¬ 
tition. Experience has proved that the self-interest of those who 
have controlled such undertakings for private gain is not coinci¬ 
dent with the public interest: even enlightened self-interest may 
often discover means of illicit pecuniary advantage in unjust dis¬ 
criminations between individuals in the use of such instrumentali¬ 
ties. But the proposition that the government should control 
such dominating organizations of capital may by no means be 
wrested to mean by any necessary implication that the government 
should itself administer those instrumentalities of economic action 
which cannot be used except as monopolies. In such cases, as Sir 
T. H. Farrer says, “ there are two great alternatives. (1) Owner¬ 
ship and management by private enterprise and capital under 
regulation by the state. (2) Ownership and management by Gov¬ 
ernment, central or local.” Government regulation may in most 
cases suffice. Indeed, such are the difficulties in the way of estab¬ 
lishing and maintaining careful business management on the part 
of government, that control ought to be preferred to direct admin¬ 
istration in as many cases as possible, — in every case in which 
control without administration can be made effectual. 

Equalization of Competition. — There are some things 
outside the field of natural monopolies in which individual action 
cannot secure equalization of the conditions of competition : and 
in these also, as in the regulation of monopolies, the practice of 
governments, of our own as well as of others, has been decisively 
on the side of governmental regulation. By forbidding child 
labor, by supervising the sanitary conditions of factories, by limit¬ 
ing the employment of women in occupations hurtful to their 
health, by instituting official tests of the purity or the quality of 


THE OBJECTS OF GOVERNMENT. 


65 


goods sold, by limiting hours of labor in certain trades, by a hun¬ 
dred and one limitations of the power of unscrupulous or heartless 
men to out-do the scrupulous and merciful in trade or industry, 
government has assisted equity. Those who would act in mod¬ 
eration and good conscience in cases where moderation and good 
conscience, if indulged, require an increased outlay of money, in 
better ventilated buildings, in greater care as to the quality of 
goods, etc., cannot be expected to act upon their principles so 
long as more grinding conditions for labor or a more unscrupulous 
use of the opportunities of trade secure to the unconscientious an 
unquestionable and sometimes even a permanent advantage; they 
have only the choice of denying their consciences or retiring from 
business. In scores of such cases government has intervened and 
will intervene; but by way, not of interference, by way, rather, 
of making competition equal between those who would rightfully 
conduct enterprise and those who basely conduct it. It is in this 
way that society protects itself against permanent injury and 
deterioration, and secures healthful equality of opportunity for 
self-development. 

Society greater than Government. — Society, it must al¬ 
ways be remembered, is vastly bigger and more important than 
its instrument, Government. Government should serve Society, 
by no means rule or dominate it. Government should not be 
made an end in itself; it is a means only, — a means to be freely 
adapted to advance the best interests of Society. The State 
exists for the sake of Society, not Society for the sake of the 
State. 

Natural Limits to State Action.—And that there are 
natural and imperative limits to state action no one who seriously 
studies the structure of society can doubt. The limit of state 
functions is the limit of necessary cooperation on the part of So¬ 
ciety as a whole, the limit beyond which such combination ceases 
to be imperative for the public good and becomes merely con¬ 
venient for industrial or social enterprise. Cooperation is neces¬ 
sary in the sense here intended when it is indispensable to the 
equalization of the conditions of endeavor, indispensable to the 
maintenance of uniform rules of individual rights and relation¬ 
ships, indispensable because to omit it would inevitably be to 


66 


THE OBJECTS OF GOVERNMENT. 


hamper or degrade some for the advancement of others in the 
scale of wealth and social standing. 

There are relations in which men invariably have need 
of each other, in which universal cooperation is the indispensa¬ 
ble condition of even tolerable existence. Only some universal 
authority can make opportunities equal as between man and man. 
The divisions of labor and the combinations of commerce may for 
the most part be left to contract, to free individual arrangement, 
but the equalization of the conditions which affect all alike may 
no more be left to individual initiative than may the organiza¬ 
tion of government itself. Churches, clubs, corporations, frater¬ 
nities, guilds, partnerships, unions, have for their ends one or 
another special enterprise for the development of man’s spiritual 
or material well-being: they are all more or less advisable. But 
the family and the state have as their end a general enterprise 
for the betterment and equalization of the conditions of individual 
development: they are indispensable. 

The point at which public combination ceases to be 
imperative is not susceptible of clear indication in general 
terms; but it is not on that account indistinct. The bounds of 
family association are not indistinct because they are marked 
only by the immaturity of the young and by the parental and 
filial affections, — things not all of which are defined in the law. 
The rule that the state should do nothing which is equally pos¬ 
sible under equitable conditions to optional associations is a 
sufficiently clear line of distinction between governments and 
corporations. Those who regard the state as an optional, conven¬ 
tional union simply, a mere partnership, open wide the doors to 
the worst forms of socialism. Unless the state has a nature which 
is quite clearly defined by that invariable, universal, immutable 
mutual interdependence which runs beyond the family relations 
and cannot be satisfied by family ties, we have absolutely no cri¬ 
terion by which we can limit, except arbitrarily, the activities of 
the state. The criterion supplied by the native necessity of state 
relations, on the other hand, banishes such license of state action. 

The state, for instance, ought not to supervise private morals 
because they belong to the sphere of separate individual responsibility, 
not to the sphere of mutual dependence. Thought and conscience are 


THE OBJECTS OF GOVERNMENT. 


67 


private. Opinion is optional. The state may intervene only where com¬ 
mon action, uniform law are indispensable. Whatever is merely con¬ 
venient is optional, and therefore not an affair for the state. Churches 
are spiritually convenient; joint-stock companies are capitalistically con¬ 
venient ; but when the state constitutes itself a church or a mere business 
association it institutes a monopoly no better than others. It should do 
nothing which is not in any case both indispensable to social or industrial 
life and necessarily monopolistic. 

The Family and the State. — It is the proper object of the 
family to mould the individual, to form him in the period of im¬ 
maturity in the faiths of religion and in the practice of morality 
and obedience. This period of subordination over, he is called 
out into an independent, self-directive activity. The ties of 
family affection still bind him, but they bind him with silken, 
not with iron bonds. He has left his ‘ minority 9 and reached his 
‘majority.’ It is the proper object of the state to give leave to 
his individuality, in order that that individuality may add its 
quota of variety to the sum of national activity Family disci¬ 
pline is variable, selective, formative: it must lead the individual. 
But the state must not lead. It must create conditions, but not 
mould individuals. Its discipline must be invariable, uniform, 
impersonal. Family methods rest upon individual inequality, 
state methods upon individual equality. Family order rests upon 
tutelage, state order upon franchise, upon privilege. 

The State and Education. — In one field the state would 
seem at first sight to usurp the family function, the field, namely, 
of education. But such is not in reality the case. Education is 
the proper office of the state for two reasons, both of which come 
within the principles we have been discussing. Popular education 
is necessary for the preservation of those conditions of freedom, 
political and social, which are indispensable to free individual 
development. And, in the second place, no instrumentality less 
universal in its power and authority than government can secure 
popular education. In brief, in order to secure popular education 
the action of society as a whole is necessary; and popular educa- 
tion is indispensable to that equalization of the conditions of per¬ 
sonal development which we have taken to be the proper object 
of society. Without popular education, moreover, no government 


68 


THE OBJECTS OF GOVERNMENT. 


which rests upon popular action can long endure: the people must 
be schooled in the knowledge, and if possible in the virtues, upon 
which the maintenance and success of free institutions depend. 
No free government can last in health if it lose hold of the tradi¬ 
tions of its history, and in the public schools these traditions may 
be and should be sedulously preserved, carefully replanted in the 
thought and consciousness.of each successive generation. 

Historical Conditions of Governmental Action. — What¬ 
ever view be taken in each particular case of the rightfulness or 
advisability of state regulation and control, one rule there is which 
may not be departed from under any circumstances, and that is 
the rule of historical continuity. In politics nothing radically 
novel may safely be attempted. No result of value can ever be 
reached in politics except through clow and gradual development, 
the careful adaptations and nice modifications of growth. Noth¬ 
ing may be done by leaps. More than that, each people, each 
nation, must live upon the lines of its own experience. Nations 
are no more capable of borrowing experience than individuals are. 
The histories of other peoples may furnish us with light, but they 
cannot furnish us with conditions of action. Every nation must 
constantly keep in touch with its past; it cannot run towards its 
ends around sharp corners. 

Summary. — This, then, is the sum of lie whole matter: 
the end of government is the facilitation of the objects of society. 
The rule of governmental action is necessary cooperation. The 
method of political development is conservative adaptation, shap¬ 
ing old habits into new ones, modifying old means to accomplish 
new ends. 


y. 


LAW: ITS NATURE AND DEVELOPMENT. 

What is Law ? — Law is the will of the State concerning 
its own organization and conduct and the civic conduct of those 
under its authority. This will may be more or less formally ex¬ 
pressed : it may speak either in custom or in specific enactment. 
Law may, moreover, be the will either of a primitive family- 
community such as we see in the earliest periods of history, or of 
a highly organized, fully self-conscious State such as those of our 
own day. But for the existence of Law there is needed in all 
cases alike (1) a community capable of having a will of its own, 
and (2) some clearly recognized body of rules to which that com¬ 
munity has, whether by custom or enactment, given life, character, 
and effectiveness. Law is that portion of the established thought 
and habit which has gained distinct and formal recognition in the 
shape of uniform rules backed by the authority and power of 
Government. The nature of each State, therefore, will be reflected 
in its law; in its law, too, will appear the functions with which it 
charges itself; and in its law will it be possible to read its history. 

The Development of Law : its Sources. —Law thus follows 
in its development, with slow, sometimes with uneven, but gener¬ 
ally with quite certain steps, the evolution of the character, the 
purposes, and the will of the organized community whose creation 
it is. The sources whence it springs are as various as the means 
by which a community can shape and express its will as a body 
politic. 

1. Custom. 1 — The earliest source of Law is Custom, and 
custom is formed no one can say definitely how, except that it 

1 1 adopt here the classification usual in English writings on Jurisprudence. 
See, e.g., T. E. Holland, Jurisprudence , pp. 48 et seq. 

09 


70 


law: its nature and development. 


is shaped by the cooperative action of the whole community, and 
not by any kingly or legislative command. It is not formed 
always in the same way; but it always rests upon the same 
foundation, upon the general acceptance of a certain course of 
action as best or most convenient. Whether custom originate in 
the well-nigh accidental formation of certain habits of action or 
in a conscious effort on the part of a community to adjust its 
practices more perfectly to its social and political objects, it 
becomes, when once it has been formed and accepted by the pub¬ 
lic authority, a central part of Law. It is difficult, if not impos¬ 
sible, to discover the exact point at which custom passes from 
the early inchoate state in which it is merely tending to become 
the express and determinate purpose of a community into the 
later stage in which it becomes Law; but we can say with assur¬ 
ance that it becomes Law only when it wins the support of a 
definite authority within the community. It is not Law if men 
feel free to depart from it. 

Under the reign of customary law that state of things actually 
did exist which modern law still finds it convenient to take for granted: 
everybody knew what the law was. The Teutonic hundred-moots, for 
example, the popular assemblies which regularly tried cases under the 
early polity of our own ancestors, declared the law by the public voice ; 
the people themselves determined what it was and how it should be 
applied. Custom grew up in the habits of the people ; they consciously 
or unconsciously originated it; to them it was known and by them it was 
declared. 

2. Religion. —In the earliest times Custom and Reli¬ 
gion were almost indistinguishable; a people’s customs bore on 
every lineament the likeness of its religion. And in later stages 
of development Religion was still a prolific source of Custom. 
No primitive community contained any critic who could, even in 
his secret thought, separate Law from Religion. All rules of life 
bore for the antique mind the same sanction (page 15). There 
were not in its conception rules moral and rules political: poli¬ 
tics, morals, and religion were indistinguishable parts of one 
great indivisible Law of Conduct. Religion and Politics very 
soon, it is true, came to have different ministers. In name often, 
if not always in fact, the priest was distinct from the magistrate. 


LAW : ITS NATURE AND DEVELOPMENT. 71 

But throughout a very long development, from the time of Greece 
and Borne, the magistrate either retained priestly functions or 
was dominated by rules which the priest declared and of which 
the priest was the custodian. 

Thus the early law of Rome was little more than a body of 
technical religious rules, a system of means for obtaining individual rights 
through the proper carrying out of certain religious formulae ; and it 
marked the beginning of the movement of Roman law towards a broad 
and equitable system of justice when these rules of procedure were 
changed from sacerdotal secrets into published law by the publication of 
the Twelve Tables. 

3. Adjudication. — One of the busiest and one of the 
most useful, because watchful, open-minded, and yet conserva¬ 
tive, makers of Law under all systems has been the magistrate, 
the Judge. It is he who in his decisions recognizes and adopts 
Custom, and so gives it the decisive support of the public power; 
it is he who shapes written enactments into suitability to indi¬ 
vidual cases and thus gives them due flexibility and a free devel¬ 
opment. He is the authoritative voice of the community in 
giving specific application to its Law: and in doing this he ne¬ 
cessarily becomes, because an interpreter, also a maker of Law. 
Whether deliberately or unconsciously, in expounding and ap¬ 
plying he moulds and expands the Law. It is his legitimate 
function to read Law in the light of his own sober and consci¬ 
entious judgment as to what is reasonable and just in custom, 
what practicable, rational, or equitable in legislation. 

It is this ‘ judge-made ’ law which is to be found, and is there¬ 
fore so diligently sought for, in the innumerable law Reports cited in our 
courts. Except under extraordinary circumstances, our courts and those 
of England will always follow decisions rendered in similar cases by 
courts of equal jurisdiction in the same state. A fortiori do they follow 
the decisions of the highest courts: by these they are in a sense bound. 
In the courts of the continent of Europe, on the other hand, decisions are 
listened to as important expressions of opinion, but not as conclusive 
authority : are heard much as our own courts or those of England hear 
the decisions of courts of other states acting under like laws or similar 
circumstances. 

4. Equity.—Equity too is judge-made Law; but it is 
made, not in interpretation of, but in addition to, the laws which 


72 


LAW : ITS NATURE AND DEVELOPMENT. 


already exist. The most conspicuous types of such Law are the 
decisions of the Roman Praetor and those of the English Chan¬ 
cellor. These decisions were meant to give relief where existing 
law afforded none. The Praetor declared, for instance, that he 
would allow certain less formal processes than had hitherto been 
permitted to secure rights of property or of contract, of marriage 
or of control, etc. The English Chancellor, in like manner, as 
keeper of the king’s judicial conscience, supplied remedies in cases 
for which the Common Law had no adequate processes, and thus 
relieved suitors of hardships they might otherwise have suffered 
from the fixity or excessive formality of the Common Law, and 
enabled them in many things to obtain their substantial rights 
without technical difficulty. 

After the official decrees of the Praetors had been codified by 
the Praetor Salvius Iulianus, in the time of the Emperor Hadrian, and 
still more after they had been embodied in the Code of Justinian, the 
Corpus Juris Civilis, the Praetor’s ‘equity’ became as rigid and deter¬ 
minate as the law which it had been its function to mend and ameliorate. 
In the same manner, our own state codes, many of which have fused 
law and equity in the same courts and under common forms of procedure, 
have given equity the sanction and consequently the fixity of written 
law. The English Judicature Act, also, of 1873, merging, as it does, 
the common-law and equity courts into a single homogeneous system, 
shows at least that a strong tendency in the same direction exists in Eng¬ 
land. The adjustments of Equity are less needed now that legislation is 
constantly active in mending old and creating new law and, when neces¬ 
sary, new procedure. 

In the same case with Equity must be classed the numerous so- 
called ‘fictitious actions’ which were the invention of the common-law 
courts and which, by means of imaginary suitors or imaginary transac¬ 
tions, duly recorded as if real, enabled things to be done and rights 
acquired which would have been impossible under any genuine process 
of the Common Law. 

5. Scientific Discussion. — Tbe carefully formed opin¬ 
ions of learned text-writers have often been accepted as deci¬ 
sive of the Law: more often under the Roman system, however, 
than under our own, though even we have onr Cokes, our 
Blackstones, our Storys, and our Kents, whom our courts hear 
with the greatest possible respect. It is the proper function 
of legal science to interpret the law, not piecemeal, as the 


LAW: ITS NATURE AND DEVELOPMENT. 


73 


courts must, but in such way as to bring all its parts to their full 
development as doctrine and to their complete adjustment as 
members of a living system of thought and practice; to give the 
law system, study the conditions and forms of its genesis and 
development, and assist courts and legislatures alike in their 
functions of adaptation and creation. 

6. Legislation. — That deliberate formulation of new 
Law to which the name Legislation is given is, for us of the 
modern time, the most familiar as well as the most prolific 
source of Law. For us Legislation is the work of representa¬ 
tive bodies almost exclusively; but representation is no part 
of the essential character of the legislative act. Absolute mag¬ 
istrates or kings have in all stages of history been, under one 
system or another, makers of laws. Whether acting under the 
sanction of custom or under the more artificial arrangements of 
highly developed constitutions, father or praetor, king or archon 
has been a lawgiver. So, too, the assemblies of free men which, 
alike in Greece and in Rome, constituted the legislative authority 
were not representative, but primary bodies, like the Lands • 
gemeinden of the smaller Swiss cantons. 

Representation came in with the Germans; and with the 
critical development of institutions which the modern world has 
seen many new phases of Legislation have appeared. Modern 
law has brought forth those great private corporations whose 
bye-laws are produced by what may very fitly be called private 
legislative action. We have, too, on the same model, chartered 
governments, with legislatures acting under special grants of 
law-making power. Legislation has had and is having a notable 
development, and is now the almost exclusive means of the 
formulation of new Law. Custom of the older sort, which gave 
us the great Common Law, has been in large part superseded 
by acts of legislation; Religion stands apart, giving law only to 
the conscience; Adjudication is being more and more restricted 
by codification; Equity is being merged in the main body of the 
Law by enactment; Scientific Discussion now does hardly more 
than collate cases : all means of formulating Law tend to be 
swallowed up in the one great, deep, and broadening source, 
Legislation. 


74 


LAW: ITS NATURE AND DEVELOPMENT. 


Custom again. — Custom at last enters again, with a 
new aspect and a new method. After judges have become the 
acknowledged and authoritative mouthpieces of Equity and of 
the interpretative adaptation of customary or enacted Law; after 
scientific writers have been admitted to power in the systematic 
elucidation and development of legal principles; even after the 
major part of all law-making has fallen to the deliberate action 
of legislatures, given liberal commission to act for the commu¬ 
nity, Custom still maintains a presiding and even an imperative 
part in legal history. It is Custom, the silent and unconcerted 
but none the less prevalent movement, that is, of the common 
thought and action of a community, which recognizes changes of 
circumstance which judges would not, without its sanction, feel, 
or be, at liberty to regard in the application of old enactments, 
and which legislators have failed to give effect to, by repeal or 
new enactment. Laws become obsolete because silent but observ¬ 
ant and imperative Custom makes evident the deadness of their 
letter, the inapplicability of their provisions. Custom, too, 
never ceases to build up practices legal in their character and yet 
wholly outside formal Law, constructing even, in its action on 
Congresses and Parliaments, great parts of great constitutions. 
It constantly maintains the great forces of precedent and opinion 
which daily work their will, under every form of government, 
upon both the contents and the administration of Law. Custom 
is Habit under another name; and Habit in its growth, while 
it continually adjusts itself to the standard fixed in formal 
Law, also slowly compels formal Law to conform to its abid¬ 
ing influences. Habit may be said to be the great Law within 
which laws spring up. Laws can extend but a very little way 
beyond its limits. They may help it to gradual extension? 
of its sphere and to slow modifications of its practices, but 
they cannot force it abruptly or disregard it at all with 
impunity. 


The history of France since the Revolution affords a noteworthy 
example of these principles in the field of constitutional law. There 
we have witnessed this singular and instructive spectacle: a people 
made democratic in thought by the operation of a speculative political 
philosophy has adopted constitution after constitution created in the 


LAW ; ITS NATURE AND DEVELOPMENT. 75 

exact image of that thought. But they had, to begin with, absolutely no 
democratic habit, — no democratic custom. Gradually that habit has 
grown, fostered amidst the developments of local self-direction; and 
the democratic thought has penetrated, wearing the body of practice, its 
only vehicle to such minds, to the rural populace. Constitutions and 
custom have thus advanced to meet one another, — constitutions compelled 
to adopt precedent rather than doctrine as their basis, thought, practical 
experience rather than the abstract conceptions of philosophy ; and habit 
constrained to receive the suggestions of written law. Now, therefore, in 
the language of one of her own writers, France has ‘ ‘ a constitution the 
most summary in its text” (leaving most room, that is, for adjustments), 
“the most customary in its application , the most natural outcome of our 
manners and of the force of circumstances” that she has yet possessed. 1 
Institutions too theoretical in their basis to live at first, have nevertheless 
furnished an atmosphere for the French mind and habit: that atmosphere 
has affected the life of France, — that life the atmosphere. The result 
that has been reached is normal liberty, political vitality and vigor, civil 
virility. 

Typical Character of Roman and English Law. — Roman 

law and English law are peculiar among the legal systems of 
western Europe for the freedom and individuality of their devel¬ 
opment. Rome’s jus civile was, indeed, deeply modified through 
the influence of the jus gentium; it received its philosophy from 
Greece, and took some color from a hundred sources; and English 
law, despite the isolation of its island home, received its jury 
system and many another suggestion from the Continent, and has 
been much, even if unconsciously, affected in its development by 
the all-powerful law of Rome. But English and Roman law alike 
have been much less touched and colored than other systems by 
outside influences, and have presented to the world what may be 
taken as a picture of the natural, the normal, untrammelled evo¬ 
lution of law. 

The Order of Legal Development. — As tested by the his¬ 
tory of these systems, the order in which I have placed the 
Sources of Law is seen to be by no means a fixed order of histori¬ 
cal sequence. Custom is, indeed, the earliest fountain of Law, 
but Religion is a contemporary, an equally prolific, and in some 
stages of national development an almost identical source; Ad¬ 
judication comes almost as early as authority itself, and from a 

1 Albert Sorel, Montesquieu (Am. trans.), pp. 200, 201. 


76 


LAW : ITS NATURE AND DEVELOPMENT. 


very antique time goes hand in hand with Equity. Only Legis¬ 
lation, the conscious and deliberate origination of Law, and Sci¬ 
entific Discussion, the reasoned development of its principles, 
await an advanced stage of growth in the body politic to assert 
their influence in law-making. In Rome, Custom was hardly 
separable from Religion, and hid the knowledge of its principles 
in the breasts of a privileged sacerdotal class; among the English, 
on the contrary, Custom was declared in folk-moot by the voice 
of the people, — as possibly it had been among the ancestors of 
the Romans. In both Rome and England there was added to the 
influence of the magistrate who adopted and expanded Custom 
in his judgments the influence of the magistrate (Praetor or 
Chancellor) who gave to Law the flexible principles and practices 
of Equity. And in both, Legislation eventually became the only 
source of Law. 

But in Rome Legislation grew up under circumstances 
entirely Roman, to which English history can afford no parallel. 
Rome gave a prominence to scientific discussion such as never 
gladdened the hearts of philosophical lawyers in England. The 
opinions of distinguished lawyers were given high, almost conclu¬ 
sive, authority in the courts; and when the days of codification 
came, great texts as well as great statutes and decrees were 
embodied in the codes of the Empire. The legislation of the 
popular assemblies, which Englishmen might very easily have 
recognized, was superseded in the days of the Empire by impe¬ 
rial edicts and imperial codes such as the history of English legis¬ 
lation nowhere shows; and over the formulation of these codes 
and edicts great jurists presided. The only thing in English 
legal practice that affords a parallel to the influence of lawyers 
in Rome is the cumulative authority of judicial opinions. That 
extraordinary body of precedent, which has become as much a 
part of the substance of English law as are the statutes of the 
realm, may be considered the contribution of the legal profession 
to the law of England. 

The Forces Operative in the Development of Law._The 

forces that create and develop law are thus seen to be the same 
as those which are operative in national and political development. 


LAW : ITS NATURE AND DEVELOPMENT. 


77 


If that development hying forth monarchical forms of govern¬ 
ment, if the circumstances amidst which a people’s life is cast 
eradicate habits of local self-rule and establish habits of submis¬ 
sion to a single central authority set over a compacted state, that 
central authority alone will formulate and give voice to Law. 
If, on the other hand, the national development be so favorably 
cast that habits of self-reliance and self-rule are fostered and con¬ 
firmed among the people, along with an active jealousy of any too 
great concentration of only partially responsible power, Law will 
more naturally proceed, through one instrumentality or another, 
from out the nation: vox legis, vox populi. But in the one case 
hardly less than in the other Law will express, not the arbitrary, 
self-originative will of the man or body of men by whom it is for¬ 
mulated, but such rules as the body of the nation is prepared by 
reason of its habits and fixed preferences to accept. The func¬ 
tion of the framers of Law is a function of interpretation, of 
formulation rather than of origination: no step that they can 
take successfully can lie far apart from the lines along which 
the national life has run. Law is the creation, not of indi¬ 
viduals, but of the special needs, the special opportunities, the 
special perils or misfortunes of communities. No ‘law-maker’ 
may force upon a people Law which has not in some sense been 
suggested to him by the circumstances or opinions of the nation 
for whom he acts. Eulers, in all states alike, exercise the power 
of the community, but cannot exercise any other. The commu¬ 
nity may supinely acquiesce in the power arrogated to himself by 
the magistrate, but it can in no case really make him independent 
of itself. 

Here again Trance furnishes our best illustration. We have 
a vivid confirmation of the truths stated in such an event as 
the establishment of the Second Empire. The Trench people 
were not duped by Louis Napoleon. The facts were simply these. 
They were keenly conscious that they were making a failure of 
the self-gcrvernment which they were just then attempting; they 
wanted order and settled rule in place of fear of revolution and 
the certainty of turbulent politics; and they took the simplest, 
most straightforward and evident means of getting what they 


78 


LAW : ITS NATURE AND DEVELOPMENT. 


wanted. The laws of Napoleon were in .a very real sense their 
own creation. 

The Power of the Community must be behind Law.—- 

The law of some particular state may seem to be the command of 
a minority only of those who compose the state: it may even in 
form utter only the will of a single despot; but in reality laws 
which issue from the arbitrary or despotic authority of the few 
who occupy the central seats of the state can never be given full 
effect unless in one form or another the power of the community 
be behind them. Whether it be an active power organized to 
move and make itself prevalent or a mere inert power lying pas¬ 
sive as a vast immovable buttress to the great structure of abso¬ 
lute authority, the power of the community must support law 
or the law must be without effect. The bayonets of a minority 
cannot long successfully seek out the persistent disobediences 
of the majority. The majority must acquiesce or the law must 
be null. 

There can be no reasonable doubt that the power of Russia’s 
Czar, vast and arbitrary as it seemed, derived its strength from 
the Russian people. It was not the Czar’s personal power; it 
was his power as head of the national church, as semi-sacred 
representative of the race and its historical development and 
organization. Its roots run deep into the tenacious, nourishing 
soil of immemorial habit. The Czar represented a history, not a 
caprice. Temporary, fleeting despots, like the first Napoleon, 
lead nations by the ears, playing to their love of glory, to their 
sense of dignity and honor, to their ardor for achievement and 
their desire for order. 

Both a Mirror of Conceptions and an Active Force.— 

Looked at from an abstract point of view, Law is a body of prin¬ 
ciples, and as such constitutes a mirror of the prevalent concep¬ 
tions as to ethical standards and social relationships in the 
communities in which it is accepted. But Law is also an active 
force, an expression of will. It is not merely a body of opinion; 
it is also a body of practical rules in operation. It is opera¬ 
tive in two ways. It exercises both an ethical and a physical 
compulsion. 

It involves (1), an Ought , in proportion as it is received as 


LAW : ITS NATURE AND DEVELOPMENT. 


79 


just or expedient. It is a source of conviction and motive in 
proportion as it is accepted as true. This ethical force is its prin¬ 
cipal force, its force for the majority. It is daily influential in 
moving men to do even what they conceive to be contrary to their 
individual interests. And this even when it is unjust in parts, 
provided it be deemed sound and just as a whole. (2) Tor the 
minority, who do not yield to its moral force or feel its moral 
compulsions, it involves a Must, and speaks harshly of the power 
of the state. That power is not great enough to venture to say 
* You must’ to a prevalent majority of any people. In cases of 
conquest, it is true, like that of the Normans in England, an 
actual physical compulsion may be operative for long periods to¬ 
gether even against a numerical majority, and the law may seem 
to possess an ethical force only for the minority. But generally 
the compulsion is confined to the field of public law, in such 
cases; and there are majorities in affairs which are to be 
reckoned, not by number, but by capacity. 

Roman Law an Example. — The law of Rome affords 
in this respect an admirable example of the normal charac¬ 
ter of law. It was the fundamental thought of Roman Law 
that it was the will of the Roman people. The political lib¬ 
erty of the Roman consisted in his membership of the state 
and his consequent participation, either direct or indirect, in 
the utterance of law. As an individual he was subordinated 
to the will of the state ; but his own will as a free burgess 
was a part of the state’s will. He was an integral part of 
the community, his own power found its realization in the 
absolute potestas et majestas populi. This giant will of the 
people, speaking through the organs of the state, constituted a 
very absolute power, by which the individual was completely 
dominated; but individual rights were recognized in the equality 
of the law, in its purpose to deal equally with high and low, with 
strong and weak; and this was the Roman recognition of indi¬ 
vidual liberty. 

The Power of Habit. — Legislators, those who exercise 
the authority of a community, build upon the habit of their so- 
called ‘ subjects.’ If they be of the same race and sharers of the 


80 


LAW : ITS NATURE AND DEVELOPMENT. 


same history as those whom they rule, their accommodation of 
their acts to the national habit will be in large part unconscious : 
for that habit runs in their own veins as well as in the veins of the 
people. If they be invaders or usurpers, they avoid crossing the 
prejudices or the long-abiding practices of the nation out of 
caution or prudence. In any case their activity skims but the 
surface, avoids the sullen depths of the popular life. They work 
arbitrary decrees upon individuals, but they are balked of power 
to turn about the life of the mass: that they can effect only by 
slow and insidious measures which almost insensibly deflect the 
habits of the people into channels which lead away from old into 
new and different methods and purposes. The habit of the 
nation is the material on which the legislator works; and its 
qualities constitute the limitations of his power. It is stubborn 
material, and dangerous. If he venture to despise it, it forces 
him to regard and humor it; if he would put it to unaccustomed 
uses, it balks him; if he seek to force it, it will explode in his 
hands and destroy him. The authority is not his, but only the 
leadership. 

Law's Utterance of National Character. — There is no 
universal law, but for each nation a law of its own, which bears 
evident marks of having been developed along with the national 
character, which mirrors the special life of the particular people 
whose political and social judgments it embodies (page 75). 
The despot may be grossly arbitrary; he may violate every prin¬ 
ciple of right in his application of the law to individuals ; he 
may even suspend all justice in individual cases; but the law, 
the principles which he violates or follows at pleasure, he 
takes from the people whom he governs, extracts from their 
habit and history. What he changes is the application merely, 
not the principles, of justice ; and he changes that application 
only with reference to a comparatively small number of individ¬ 
uals whom he specially picks out for his enmity or displeasure. 
He cannot violently turn about the normal processes of the 
national law. 

Germanic Law. — We have in Germanic law an example 
of the influence of national character upon legal systems as con¬ 
spicuous as that afforded by Roman law itself, and the example 


LAW : ITS NATURE AND DEVELOPMENT. 


81 


is all the more instructive when put alongside of the Roman 
because of the sharpness of the contrasts between Roman and 
Germanic legal conceptions. Although so like the Romans in 
practical political sagacity and common-sense legal capacity, the 
Germans had very different conceptions as to the basis and 
nature of law. Their law spoke no such exaltation of the public 
power, and consequently no such intense realization of unity. 
The individual German was, so to say, given play outside the 
law; his rights were not relative, but absolute, self-centred. 
It was the object of the public polity rather to give effect to 
individual worth and liberty than to build together a compact, 
dominant community. German law, therefore, took no thought 
for systematic equality, but did take careful thought to leave 
room for the fullest possible assertion of that individuality which 
must inevitably issue in inequality. It was- a flexible frame¬ 
work for the play of individual forces. It lacked the energy, 
the united, triumphant strength of the Roman system; but it 
contained untold treasures of variety and of individual achieve¬ 
ment. It, no less than Roman law, rested broadly upon national 
character; and it was to supply in general European history 
what the Roman system could not contribute. 1 

Sovereignty: who gives Law? — If, then, law be a 
product of national character, if the power of the community 
must be behind it to give it efficacy, and the habit of the com¬ 
munity in it to give it reality, where is the seat of sovereignty ? 
Whereabouts and in whom does sovereignty reside, and what 
is Sovereignty ? These, manifestly, are questions of great scope 
and complexity, and yet questions central to a right understand¬ 
ing of the nature and genesis of law. It will be best to approach 
our answers to them by way of an' illustration. 

In England, sovereignty is said to rest with the legis¬ 
lative power: with Parliament acting with the approval of the 
Crown, or, not to discard an honored legal fiction, with the Crown 
acting with the assent of Parliament. Whatever an Act of Par¬ 
liament prescribes is law, even though it contravene every prin- 

1 What is here said of Germanic law and the Germans refers to the primi¬ 
tive, not to the modern Germans. The present German laws and Germans 
are all that those here spoken of were not. 


82 


law: its nature and development. 


ciple, constitutional or only of private right, recognized before 
the passage of the Act as inviolable. Such is the theory. The 
well-known fact is, that Parliament dare do nothing that will 
even seem to contravene principles held to be sacred in the 
sphere either of constitutional privilege or private right. Should 
Parliament violate such principles, their action would be repu¬ 
diated by the nation, their will, failing to become indeed law, 
would pass immediately into the limbo of things repealed j Par¬ 
liament itself would be purged of its offending members. Parlia¬ 
ment is ma ffer, can utter valid commands, only so far as it 
interprets, or at least does not cross, the wishes of the people. 
Whether or not it be possible to say with the approval of those 
who insist upon maintaining the rules of a strict abstract logic 
that the sovereignty of Parliament is limited de jure, that is, in 
law, it is manifestly the main significant truth of the case that 
parliamentary sovereignty is most imperatively limited de facto , 
in fact. Its actual power is not a whit broader for having a free 
field in law , so long as the field in which it really moves is fenced 
high about by firm facts. 

Sovereignty, therefore, as ideally conceived in legal theory, 
nowhere actually exists. The sovereignty which does exist is 
something much more vital, — though, like most living things, 
much less easily conceived. It is the will of an organized 
independent community, whether that will speak in acquiescence 
merely, or in active creation of the forces and conditions of poli¬ 
tics. The kings or parliaments who serve as its vehicles utter 
it, but they do not possess it. Sovereignty resides in the com¬ 
munity ; but its organs, whether those organs be supreme mag¬ 
istrates, busy legislatures, or subtile privileged classes, are as 
various as the conditions of historical growth. 

Certain Legal Conceptions Universal. — The correspond¬ 
ence of law with national character, its basis in national habit, 
does not deprive it of all universal characteristics. Many com¬ 
mon features it does wear among all civilized peoples. As the 
Bomans found it possible to put together, from the diversified 
systems of law existing among the subject peoples of the Mediter¬ 
ranean basin, a certain number of general maxims of justice out 


LAW : ITS NATURE AND DEVELOPMENT. 


83 


of which, to construct the foundations of their jus gentium , so may 
jurists to-day discover in all systems of law alike certain common 
moral judgments, a certain evidence of unity of thought regarding 
the greater principles of equity. There is a common legal con¬ 
science in mankind. 

Thus, for example, the sacredness of human life; among 
all Aryan nations at least, the sanctity of the nearer family 
relationships ; in all systems at all developed, the plainer prin¬ 
ciples of ‘ mine ’ and ( thine ’; the obligation of promises ; many 
obvious duties of man to man suggested by the universal moral 
consciousness of the race, receive recognition under all systems 
alike. Sometimes resemblances between systems the most widely 
separated in time and space run even into ceremonial details, 
such as the emblematic transfer of property, and into many items 
of personal right and obligation. 

Law and Ethics. — It by no means follows, however, 
that because law thus embodies the moral judgments of the 
race on many points of personal relation and individual conduct, 
it is to be considered a sort of positive, concrete Ethics, — Ethics 
crystallized into definite commands towards which the branch of 
culture which we call ‘ Ethics’ stands related as theory to prac¬ 
tice. Ethics concerns the whole walk and conversation of the 
individual; it touches the rectitude of each man’s life, the truth 
of his dealings with his own conscience, the whole substance of 
character and conduct, righteousness both of act and of mental 
habit. Law, on the other hand, concerns only man’s life in 
society. It not only confines itself to controlling the outward 
acts of men; it limits itself to those particular acts of man to 
man which can be regulated by the public authority, which it has 
proved practicable to regulate in accordance with uniform rules 
applicable to all alike and in an equal degree. It does not essay 
to punish untruthfulness as such, it only annuls contracts ob¬ 
tained by fraudulent misrepresentation and makes good such 
pecuniary damage as the deceit may have entailed. It does not 
censure ingratitude or any of the subtler forms of faithlessness, 
it only denounces its penalties against open and tangible acts of 
dishonesty. It does not assume to be the guardian of men’s char- 


84 


LAW: ITS NATURE AND DEVELOPMENT. 


acter3, it only stands with a whip for those who give overt proof 
of bad character in their dealings with their fellow-men. Its limi¬ 
tations are thus limitations both of kind and of degree. It ad¬ 
dresses itself to the regulation of outward conduct only: that is 
its limitation of kind ; and it regulates outward conduct only so 
far as workable and uniform rules can be found for its regulation: 
that is its limitation of degree. 

Mala Prohibita. — Law thus plays the role neither of 
conscience nor of Providence. More than this, it follows stand¬ 
ards of policy only, not absolute standards of right and wrong. 
Many things that are wrong, even within the sphere of social 
conduct, it does not prohibit; many things not wrong in them¬ 
selves it does prohibit. It thus creates, as it were, a new class 
of wrongs, relative to itself alone: mala prohibita, things wrong 
because forbidden. In keeping the commands of the state re¬ 
garding things fairly to be called morally indifferent in them¬ 
selves men are guided by their legal conscience. Society rests 
upon obedience to the laws : laws determine the rules of social 
convenience as well as of social right and wrong ; and it is as 
necessary for the perfecting of social relationships that the rules 
of convenience be obeyed as it is that obedience be rendered to 
those which touch more vital matters of conduct. 

Thus it cannot be said to be inherently wrong for a man to 
marry his deceased wife’s sister ; but if the laws, seeking what 
may be esteemed to be a purer order of family relationships, 
forbid such a marriage, it becomes malum prohibitum: it is wrong 
because illegal. 

It would certainly not be wrong for a trustee to buy the trust 
estate under his control if he did so in good faith and on terms 
manifestly advantageous to the persons in whose interest he held 
it; but it is contrary to wise public policy that such purchases 
should be allowed, because a trustee would have too many oppor¬ 
tunities for unfair dealing in such transactions. The law will 
under no circumstances hold the sale of a trust estate to the 
trustee valid. Such purchases, however good the faith in which 
they are made, are mala prohibita. 

Or take, as another example, police regulations whose only 


LAW : ITS NATURE AND DEVELOPMENT. 


85 


object is to serve the convenience of society in crowded cities. 
A street parade, with bands and banners and men in uniform is 
quite harmless and is immensely pleasing to those who love the 
glitter of epaulettes and brass buttons and the blare of trumpets ; 
but police regulations must see to it that city streets are kept 
clear for the ordinary daily movements of the busy city popula¬ 
tion, and to parade without license is malum prohibitum. 

In all civilized states law has long since abandoned attempts 
to regulate conscience or opinion ; it would find it, too, both 
fruitless and unwise to essay any regulation of conduct, however 
reprehensible in itself, which did not issue in definite and 
tangible acts of injury to others. But it does seek to command 
the outward conduct of men in their palpable dealings with each 
other in society. Law is the mirror of active political life. It 
may be and is instructed by the ethical judgments of the com¬ 
munity, but its own province is not distinctively ethical; it may 
regard religious principle, but it is not a code of religion. Ethics 
has been called the science of the well-being of man, law the 
science of his right civil conduct. Ethics concerns the develop¬ 
ment of character; religion, the development of man’s relation 
with God; law, the development of men’s relations to each other 
in society. Ethics, says Mr. Sidgwick, “ is connected with 
politics so far as the well-being of any individual man is bound 
up with the well-being of his society.” 

International Law. — International Law may be described as 
law in an incomplete state. It is law without a forceful sanction 
such as exists for the ordinary law of the land. There is no 
earthly power to which all nations are subject; there is no power, 
therefore, above the nations to enforce obedience to rules of con¬ 
duct as between them, yet International Law is not lacking in 
sanction altogether ; it rests upon those principles of right action, 
of justice, and of consideration which have so universal an 
acceptance in the moral judgment of men that they have been 
styled the Laws of Nature. Back of it in the first instance is 
the common public opinion of the world. When this public 
opinion is flouted, and the principles and practices of inter¬ 
national Law are disregarded, then the physical force of in- 


86 


LAW : ITS NATURE AND DEVELOPMENT. 


dividual states or groups of states may be brought to bear upon 
the law-breaker. International Law is the law of the inter¬ 
national community of states ; its principles are those upon which 
the successful life of that community depends. The society of 
states is not yet fully organized and International Law is incom¬ 
plete just to the extent that this society lacks organization ; its 
courts, its judges, its legislatures are rudimentary and are want¬ 
ing as yet in that definiteness of constitution and authority which 
we find in individual states. 

Early writers like Grotius and Yattel embodied it in distinct 
statements of what they conceived to be the almost self-evident 
principles of the Law of Nature. In process of time, the practice 
of nations has been recorded in state papers and in learned 
treatises by hosts of scholars; principles of international action 
have been agreed to in treaties by which states acting in pairs or 
in groups have agreed to be bound in their relations with each 
other, and both practice and agreements have found their way 
into the statutes or established judicial precedents of enlightened 
individual states. More and more international conventions have 
come to recognize certain elements of right, of equity and comity 
as settled, as always to be accepted in transactions between 
states. The practice of concerted action by the states of the 
world in formulating International Law is best exemplified in the 
First and Second Hague Conferences of 1899 and 1907, where 
much of the practice of International Law was formulated and 
definite rules accepted by the great body of states as binding 
upon them. 

The formation of a “ League of Nations ” to bring pressure to 
bear upon a state unmindful of its international obligations will 
go far towards supplying the sanction of regulated force which 
International Law has hitherto lacked. 

These rules concern the conduct of war, diplomatic inter¬ 
course, the rights of citizens of one country living under the 
dominion of another, jurisdiction at sea, the rights and duties of 
neutrals, etc. Extradition principles are settled almost always 
by specific agreement between country and country, as are also 
commercial arrangements, fishing rights, and all similar matters 


.LAW : ITS NATURE AND DEVELOPMENT. 


87 


not of universal bearing. But even in such matters example 
added to example is turning nations in the direction of uniform 
principles ; such, for instance, as that political offences shall not 
be included among extraditable crimes, unless they involve 
ordinary crimes of a very heinous nature, such as murder. 

Laws of Nature and Laws of the State. —The analogy 
between political laws, the laws which speak the will of the state, 
and natural laws, the laws which express the orderly succession 
of events in nature, has often been dwelt upon, and is not without 
instructive significance. In the one set of laws as in the other, 
there is, it would seem, a uniform prescription as to the opera¬ 
tion of the forces that make for life. The analogy is most in¬ 
structive, however, where it fails: it is more instructive, that is, 
to note the contrasts between the laws of nature and laws of the 
state than to note such likeness as exists between them. The 
contrasts rather than the resemblances serve to make evident the 
real nature of political regulation. “Whenever we have made 
out by careful and repeated observation,” says Professor Huxley, 
“that something is always the cause of a certain effect, or that 
certain events always take place in the same order, we speak of 
the truth thus discovered as a law of nature. Thus it is a law 
of nature that anything heavy falls to the ground if it is unsup¬ 
ported. . . . But the laws of nature are not the causes of the 
order of nature, but only our way of stating as much as we have 
made out of that order. Stones do not fall to the ground in con¬ 
sequence of the law just stated, as people sometimes carelessly 
say ; but the law is a way of asserting that which invariably hap¬ 
pens when heavy bodies at the surface of the earth, stones among 
the rest, are free to move.” 

Whatever analogies may exist between such generalized state¬ 
ments of physical fact and the rules in accordance with which 
men are constrained to act in organized civil society it may be 
profitable for the curious carefully to inquire into. What it is 
most profitable for the student of politics to observe is the 
wide difference between the two, which Professor Huxley very 
admirably states as follows: “ Human law consists of com¬ 
mands addressed to voluntary agents, which they may obey or 


88 


LAW : ITS NATURE AND DEVELOPMENT. 


disobey; and the law is not rendered null and void by being 
broken. Natural laws, on the other hand, are not commands, 
but assertions respecting the invariable order of nature ; and they 
remain law only so long as they can be shown to express that 
order. To speak of the violation or suspension of a law of nature 
is an absurdity. All that the phrase can really mean is that, 
under certain circumstances, the assertion contained in the law is 
not true; and the just conclusion is, not that the order of nature 
is interrupted, but that we have made a mistake in stating that 
order. A true natural law is a universal rule, and, as such, ad¬ 
mits of no exception.” 1 In brief, human choice enters into the 
law of the state, whereas from natural law that choice is alto¬ 
gether excluded : it is dominated by fixed necessity. Human 
choice, indeed, enters every part of political law to modify it. It 
is the element of change; and it has given to the growth of law 
a variety, a variability, and an irregularity which no other power 
could have imparted. 

Limitations of Political Law. —We have thus laid bare 
to our view some of the most instructive characteristics of politi¬ 
cal law. The laws of nature formulate effects invariably pro¬ 
duced by forces of course adequate to produce them; but behind 
political laws there is not always a force adequate to produce the 
effects which they are designed to produce. The force, the sanc¬ 
tion ., as jurists say, which lies behind the laws of the state is the 
organized armed power of the community: compulsion raises its 
arm against the man who refuses to obey (pages 26, 78). But 
the public power may sleep, may be inattentive to breaches of 
law, may suffer itself to be bribed, may be outwitted or thwarted: 
laws are not always ‘ enforced.’ This element of weakness it is 
which opens up to us one aspect at least of the nature of Law. 
Law is no more efficient than the state whose will it utters. The 
law of Turkey shares all the imperfections of the Turkish power; 
the laws of England bespeak in their enforcement the efficacy of 
English government. Good laws are of no avail under a bad gov- 

1 These passages are taken from Professor Huxley’s Science Primer , 
Introductory. 


LAW : ITS NATURE AND DEVELOPMENT. 


89 


eminent; a weak, decadent state may speak the highest purposes 
in its statutes and yet do the worst things in its actual admin¬ 
istration. Commonly, however, law embodies the real purposes 
of the state, and its enforcement is a matter of administrative 
capacity or of concerted power simply. 

Public Law. — The two great divisions under which law 
may best be studied are these: (1) Public Law , (2) Private Law. 
Public law is that which immediately concerns the existence, 
the structure, the functions, and the methods of the state. Taken 
in its full scope, it includes not only what we familiarly know 
as constitutional law, but also what is known as administrative 
law, as well as all civil procedure in the courts and all criminal 
law. In brief, it is that portion of law which determines a 
state’s own character and its relations to its citizens. 

Private Law. — Private law, on the other hand, is that 
portion of positive law which secures to the citizen his rights as 
against the other citizens of the state. It seeks to effect justice 
between individual and individual; its sphere is the sphere of 
individual right and duty. 

It is to the Romans that we are indebted for a first partial 
recognition of this important division in the province of Law, 
though later times have given a different basis to this distinction. 
I say ‘indebted’ because the distinction between public and 
private law has the most immediate connections with individual 
liberty. Without it, we have the state of affairs that existed in 
Greece, where there was no sphere which was not the state’s ; 
and where the sphere of the state’s relations to the individual 
was as wide as the sphere of the law itself. Individual liberty 
can exist only where it is recognized that there are rights which 
the state does not create, but only secures. 

Jurisprudence. — Jurisprudence is a term of much lati¬ 
tude, but when used strictly must be taken to mean the Science 
of Law. The science of law is complete only when it has laid 
bare both the nature and the genesis of law: the nature of law 
must be obscure until its genesis and the genesis of the con¬ 
ceptions upon which it is based have been explored; and that 
genesis is a matter, not of logical analysis, but of history. Many 


90 LAW: ITS NATURE AND DEVELOPMENT. 

writers upon jurisprudence, therefore, have insisted upon the 
historical method of study as the only proper method. They 
have sought in the history of society and of institutions to dis¬ 
cover the birth and trace the development of jural conceptions, 
the growths of practice which have expanded into the law of 
property or of torts, the influences which have contributed to the 
orderly regulation of man’s conduct in society. 

In the hands of another school of writers, however, jurispru¬ 
dence has been narrowed to the dimensions of a science of law 
in its modern aspects only. They seek to discover, by an analy¬ 
sis of law in its present full development, the rights which 
habitually receive legal recognition and the methods by which 
states secure to their citizens their rights, and enforce upon them 
their duties, by positive rules backed by the abundant sanction 
of the public power. In their view, not only is the history of 
law not jurisprudence, but, except to a very limited extent, it is 
not even the material of jurisprudence. Its material is law as it 
at present exists. The history of that law is only a convenient 
light in which the real content and purpose of existing law may 
be made plainer to the analyst. The conclusions of these writers 
are subject to an evident limitation, therefore. Their analysis of 
law, being based upon existing legal systems alone and taking 
the fully developed law for granted, can be applied to law in the 
earlier stages of society only by careful modification, only by a 
more or less subtle and ingenious accommodation of the meaning 
of its terms. 

Historical jurisprudence alone, — a science of law, that is, 
constructed by means of the historical analysis of law and always 
squaring its conclusions with the history of society, can serve 
the objects of the student of politics. The processes of analytical 
jurisprudence, however, having been conducted by minds of the 
greatest subtlety and acuteness, serve a very useful purpose in 
supplying a logical structure of thought touching full-grown 
systems of law. 

The Analytical Account of Law. —- In the thought of the 
analytical school every law is a command, “ an order issued by a 
superior to an inferior.” “ Every positive law is ‘ set by a sover 


LAW : ITS NATURE AND DEVELOPMENT. 


91 


eign person, or sovereign body of persons, to a member or mem¬ 
bers of the independent political society wherein that person or 
body of persons is sovereign or superior.’ ” In its terms, mani¬ 
festly, such an analysis applies only to times when the will of 
the state is always spoken by a definite authority; not with the 
voice of custom, which proceeds no one knows whence; not with 
the voice of religion, which speaks to the conscience as well as 
to the outward life, and whose sanctions are derived from the 
unseen power of a supernatural being; nor yet with the voice of 
scientific discussion, whose authors have no authority except that 
of clear reason; but with the distinct accents of command, with 
the voice of the judge and the legislator. 

The Analytical Account of Sovereignty. — The analytical 
account of sovereignty is equally clear-cut and positive. Laws, 
“being commands, emanate from a determinate source,” from a 
sovereign authority; and analytical jurisprudence is very strict 
and formal in its definition of sovereignty. A sovereign “ is a 
determinate person, or body of persons, to whom the bulk of the 
members of an organized community are in the habit of render¬ 
ing obedience and who are themselves not in the habit of render¬ 
ing obedience to any human superior.” It follows, of course, that 
no community which is not independent can have a law of its 
own. The law of the more fully developed English colonies, for 
example, though it is made by the enactment of their own parlia¬ 
ments, is not law by virtue of such enactment, because those 
parliaments are in the habit of being obedient to the authorities 
in London and are not themselves sovereign. The sovereignty 
which lies back of all law in the colonies is said to be the sov¬ 
ereignty of the parliament of England. 

It would seem to follow that our own federal authorities are 
sovereign. They are a determinate body of persons to whom the 
bulk of the nation is habitually obedient and who are themselves 
obedient to no human superior. But then what of the authority 
of the states in that great sphere of action which is altogether 
and beyond dispute their own, which the federal authorities do 
not and cannot enter, within which their own people are habit¬ 
ually obedient to them, and in which they are not subject to any 


92 


LAW: ITS NATURE AND DEVELOPMENT. 


earthly superior ? It has been the habit of all our earlier writers 
and statesmen to say that with us sovereignty is divided. But 
the abstract sovereignty of which the legal analyst speaks is held 
to be indivisible: it must be whole. Analysis, therefore, is 
driven to say that with us sovereignty rests in its entirety with 
that not very determinate body of persons, the people of the 
United States, the powers of sovereignty resting with the state 
and federal authorities by delegation from the people. 

The difficulty of applying the analytical account of sovereignty 
to our own law is in part avoided if law be defined as “ the com¬ 
mand of an authorized public organ, acting within the sphere of 
its competence. What organs are authorized, and what is the 
sphere of their competence, is of course determined by the or¬ 
ganic law of the state ; and this law is the direct command of the 
sovereign.” 1 The only difficulty left by this solution is that of 
making room in our system for both a sovereign people of the 
single state and a sovereign people of the Union. 

Summary. — Spoken first in the slow and general voice 
of custom, Law speaks at last in the clear, the multifarious, the 
active tongues of legislation. It grows with the growth of the 
community. It cannot outrun the conscience of the community 
and be real, it cannot outlast its judgments and retain its force. 
It mirrors social advance. If it anticipate the development of 
the public thought, it must wait until the common judgment and 
conscience grow up to its standards before it can have life ; if it 
lag behind the common judgment and conscience, it must become 
obsolete, and will come to be more honored in the breach than in 
the observance. 

1 This definition I have taken the liberty of extracting from some very- 
valuable notes on this chapter kindly furnished me by Professor Monroe 
Smith, who upon this subject speaks authoritatively. 


LAW : ITS NATURE AND DEVELOPMENT. 


93 


Several Representative Authorities. 

Austin , John, Lectures on Jurisprudence, the Philosophy of Positive 
Law, 2 vols. 

Gray , J. C., The Nature and Sources of the Law. N. Y., 1909. 

Heron , I). C., Introduction to the History of Jurisprudence. London, 
1880. 

Holland , T. E., Elements of Jurisprudence. 11th ed. N. Y., 1910. 
Ihering , v., Geist des Romischen Rechts. 3 vols., Leipzig. 

Jellinek , Georg, Gesetz und Verordnung. Freiburg in B., 1887: Das 
Recht des Modernen Staates. 2d ed. Berlin, 1905. 

Maine , Sir H. S., Ancient Law, and Early History of Institutions, 
Lectures XII., XIII. 

Markby, Sir Win., Elements of Law. Oxford (Clarendon Press), 1889* 
Modern Legal Philosophy Series, Vols. 1-2, Boston. 

Pollock , Sir Frederick, A First Book of Jurisprudence. London and 
N. Y., 1896. 

Robertson , E., Article ‘ Law,’ Encyclopaedia Britannica, 9th ed. 

Salmond, J. W., Jurisprudence. London, 1902. 

Taylor , Hannis, The Science of Jurisprudence. N. Y., 1908. 

Willoughby , W. W., The Nature of the State. N. Y., 1896. 


VI. 


POLITY AND GOVERNMENT DURING 
THE MIDDLE AGES. 

-»oX*iOO- 

Contact of the Teutonic Tribes with Rome. — The Teutonic 
tribes which, in the fifth and following centuries, threw them¬ 
selves into the Western Roman Empire to possess it were not all 
of them strangers to the polity which they overset. The Romans 
had often invaded Germany, and, although as often thrust out, 
had established a supremacy over the minds at least, if not over 
the liberties, of the Germans. Those tribes which had lived 
nearest the Rhine and the Danube, moreover, had long been in 
more or less constant contact with the masters of the Mediter¬ 
ranean and the western world, and had, of course, been deeply 
affected by the example of Roman civilization. Teutons had, 
besides, entered and, so to say, espoused the Roman world in 
great numbers, in search of individual adventure or advantage, 
long before the advent of the barbarians as armed and emigrant 
hosts. Rome had drawn some of her finest legions from these 
races which she could not subdue. Her armies were in the later 
days of the Empire full of stalwart, fair-haired Germans. Even 
her greater officers and officials were oftentimes of that blood. 

Primitive Teutonic Institutions. — When Eranks and Goths 
and Burgundians moved as militant races to the supplanting of 
Roman dominion, they, nevertheless, took with them into western 
Europe, torn as it was by Roman dissensions and sapped by 
Roman decay, an individuality of their own. They had their 
own contribution to make to the history of institutions. They 
had lived under a system of government combining, though in 

94 ' 


POLITY DURING THE MIDDLE AGES. 


95 


somewhat crude forms, tribal unity and individual independence. 
Amongst them, as amongst other Aryan peoples, kinship consti¬ 
tuted the basis of association and the primal sanction of authority; 
and the family was the unit of government. Kinsmen, fellow- 
tribesmen, were grouped in villages, and each village maintained 
without question its privileges of self-government, legislating 
upon its common affairs and administering its common property 
in village meeting. Its lands were the property, not of indi¬ 
viduals, but of the community; but they were allotted in separate 
parcels to the freemen of the community, upon would-be equit¬ 
able principles, to be cultivated for private, not for communal, 
profit. Chiefs there were who exercised magisterial powers, but 
these chiefs were elected in village meeting. They did not deter¬ 
mine the weightier questions of custom, in the administration of 
justice: that was the province of the village meeting itself; and 
such judicial authority as they did exercise was shared by 
‘assessors ’ chosen from the whole body of their free fellow- 
villagers. 

Free, Unfree, and Noble. —Not all their fellow-villagers 
were free. There were some who were excluded from political 
privilege and who held their lands only as serfs of the freemen 
of the community; and there were others, lower still in rank, 
who were simple slaves. There were, again, on the other 
hand, some who were more than free, who, for one reason or 
another, had risen to a recognized nobility of station, to a posi¬ 
tion of esteem, and to an estate of wealth above those of the rest 
of the community. But nobility did not carry with it exceptional 
political privilege: it only assured a consideration which put its 
possessor in the way of winning the greater preferments of office 
in the gift of the village meeting. The power of the noble de¬ 
pended upon the franchises of his community rather than upon 
any virtue in his own blood. 

Intercommunal Government. — It was not often that a 
village stood apart in entire dissociation from all similar tribal 
or family centres; but when it did, the powers of its moot (meet¬ 
ing) extended beyond the choice of magistrates, the management 
of the communal property, and the administration of communal 
justice. It also declared war and appointed leaders of the com- 


96 


POLITY AND GOVERNMENT 


munal ‘host.* Commonly, however, these greater matters of wai 
and of ‘foreign relations ? were determined by assemblies repre¬ 
senting more than one village. Communities sent out offshoots 
which remained connected with them by federal bonds ; or inde¬ 
pendent communities drew together into leagues; and it was the 
grand folk-moot of the confederated communities which sum¬ 
moned the ‘host’ and elected leaders,—which sometimes even 
chose the chiefs who were to preside over the administration of 
the several villages. 

Military Leadership: the Comitatus. — The leaders selected 
to head the ‘host 9 were generally men of tried powers who could 
inspire confidence and kindle emulation in their followers; and 
such men, though in all cases chosen to official leadership only 
for a single campaign, never even in times of peace ceased to be, 
potentially at least, the heads of military enterprise and daring 
adventure. Not uncommonly they would break the monotony of 
peace and dull inactivity by gathering about them a band of 
volunteers and setting forth, spite of the peace enjoyed by their 
tribe, to make fighting or find plunder somewhere for their own 
sakes. About men of this stamp there gathered generally all 
the young blades of the tribe who thirsted for excitement or 
adventure, or who aspired to gain proficiency in arms. These 
became the military household, the comitatus , of their chosen 
chieftain, his permanent, inseparable retinue, bound to him by 
the closest ties of personal allegiance, sitting always at his table, 
and at once defending his person and emulating his prowess in 
battle; a band who looked to him for their sustenance, their mili¬ 
tary equipment, and their rewards for valor, but who rendered 
him in return a gallant service which added much to his social 
consideration and gave him rank among the most powerful of his 
fellow-tribesmen. 

Contrasts between the Teutonic System and the Roman. — 

These features of tribal confederation and personal supremacy, 
though suggestive at many points of the primitive Roman state, 
were in strong contrast with the Roman polity as it existed at 
the time of the invasions. They were not only rude and primitive 
and characteristic every way of a very much less advanced stage 
of civilization, but they also contained certain principles which 


DURING THE MIDDLE AGES. 


97 


were in radical contradiction to conceptions obviously funda¬ 
mental to Homan state life. 

Roman Allegiance to the State. — The central contrast 
between the two systems may be roughly summed up in the 
statement that the Teutonic was essentially personal , the Roman 
essentially impersonal. Neither the Roman soldier nor the 
Roman citizen knew anything of the personal allegiance which 
was the chief amalgam of primitive German politics. His sub¬ 
ordination was to the state, and that subordination was so com¬ 
plete that he was practically merged in the state, possessing 
no rights but those of a child of the body politic. His obli¬ 
gation to obey the magistrate in the city or his commander in 
the field lasted only so long as the magistrate’s or command¬ 
er’s commission lasted. Allegiance had no connection with 
the magistrate or the commander as a person: magistrate and 
commander claimed allegiance only as representatives of the 
state, its temporary embodiment. To them as the state , the citi¬ 
zen or soldier owed the yielding of everything, even of life itself: 
for as against the state the Roman had no private rights. While 
he held office, therefore, and shared the imperium , magistrate or 
commander was omnipotent; his official conduct could be called 
in question only after his term of office was at an end and he had 
ceased to be the state’s self. Of course much decay had come 
into the heart of such principles ere the Empire was forced to 
break before the barbarian; but they never ceased to be central 
to Roman political conception. 

Teutonic Personal Allegiance. —With the Teutons, on 
the contrary, political association manifested an irresistible ten¬ 
dency towards just the opposite principles. When they came to 
their final triumph over the Empire they came ranked and asso¬ 
ciated upon grounds of personal allegiance. In their old life 
in Germany, as we have seen above, their relations to their 
commanders did not cease at the close of a war sanctioned by the 
community, though the commission of their leaders did expire 
then. Many, — and those the bravest and best, — remained mem¬ 
bers of their leaders’ comitatus, bound to him by no public com¬ 
mand or sanction at all, but only by his personal supremacy over 
them. They even made themselves members of his household, 


98 


POLITY AND GOVERNMENT 


depended upon the bounties of his favor, and constituted them¬ 
selves a personal following of their chosen leader such as no 
Roman but a fawning client would have deigned to belong to. 
It was a polity of individualism which presented many striking 
points of surprise to Roman observers. Individuals had under 
such a. system a freedom of origination and a separateness of 
unofficial personal weight which to the Roman were altogether 
singular and in large part repugnant. 

Temporary Coexistence of the Two Systems. — For long 
after the Teuton had established his dominion over the Roman¬ 
ized populations of Europe, Teutonic and Roman institutions 
lived side by side, each set persistent for its own people. The 
conquerors did not try to eradicate the old population or the 
old laws of the Empire. They simply carried into the midst of 
the Empire their own customs, which they kept for themselves, 
without thrusting them upon their new subjects. They appro¬ 
priated to their own uses large tracts of the conquered lands, and 
established upon them such bodies of free landholders as they had 
known and built their polity upon in their old seats, either cast¬ 
ing out those who already occupied them or reducing the occupiers 
to a servile condition; but much of the land they left untouched, 
to be occupied as before. Of course Teutonic customs, being the 
customs of the dominant race, more and more affected the older 
Roman rights, even if only insensibly; and Roman principles of 
right, belonging as they did to a much superior and much more 
highly developed civilization, which the Teuton had already long 
reverenced, must have had quite as great a modifying effect upon 
the Teutonic customs, which now, so to say, lay alongside of 
them. The Roman polity had entered into the whole habit of 
the older provincials and still retained, despite the disorders 
of the later days of the Empire, not a little of its old vigor and 
potency. It had strongly affected the imaginations of the Ger¬ 
mans when they had touched only its geographical borders, and 
it did not fail in a certain measure to dominate them even now, 
when it was at their feet. They made no attempt to stamp it 
out. They, on the contrary, tolerated, respected, imitated it. 

‘ Personal ’ Law. — What looked like tolerance on the 
part of the Teutons was in reality for the most part only a natural 


DURING THE MIDDLE AGES. 


99 


outcome of certain fixed conceptions of the race. The hosts which 
had poured into the Roman territories were much greater and 
more various in their make-up than any the Teutonic peoples 
had gathered in their communal life in the forests of Germany. 
They represented tribes united: kindred tribes, indeed, but still 
tribes only very loosely confederated at home, if united there 
under any common government at all. These each had their own 
law. Salian Frank had one law and custom, Ripuarian Frank 
another; Frank had one right and practice, Burgundian another; 
and it was a principle everywhere observed among Teutons that, 
whether joined with others in a common enterprise or not, each 
man must be judged and given his right by his own native law, 
according to the custom of his own people. Each had his 1 per¬ 
sonal ’ privilege of blood and custom, must be adjudged by his 
o^u personal* law, the law of his own tribe or homeland. So 
at any rate we have now come to phrase it; and we know that in 
giving leave to the people of the Roman territories to keep their 
law also, the conquerors were but extending to them a habit of 
their own, alike in thought and practice. 

Relative Influence of Roman and Teutonic Systems. — So 
far as any general description of this mixture of Roman and 
Teutonic influences may be ventured, it may be said that the 
Teutonic had their greatest weight on the side of political organi¬ 
zation, the Roman on the side of the development of private 
rights. The Teutons, of course, tried to reproduce in their new 
settlements the communal life peculiar to their own native insti¬ 
tutions ; they endeavored to organize their own power, according 
to the immemorial fashion of their own politics, on the basis of 
a freehold tenure of the land and local self-administration,— a 
free division of the spoils on the principle of individual equality 
among the freemen of the tribes. They had stamped out the 
Roman state in the invaded territory; Roman public law they had 
of course displaced, destroyed. It was Roman conceptions as to 
private relations that gradually modified their Teutonic system. 
That system rested, as regarded its political features hardly 
less than at all other points, upon the relations of individual 
to individual, and as the example of the Roman practices, still 
preserved by the conquered populations about them, modified 


100 


POLITY AND GOVERNMENT 


these relations of individual to individual, great changes were 
by consequence inevitably wrought in political organization as 
well. Such changes were, however, not in the direction of a 
reproduction of Roman political method, but in the direction of 
the creation of that singular public polity which we designate 
as mediaeval. 

Roman Influence upon Private Law. — The Roman influ¬ 
ence thus told most directly and most powerfully through the 
medium of Roman private law. That law had developed too 
complete and perfect a system, and was much too suitable to the 
new conditions in the midst of which they found themselves, to 
fail of influence amongst the new organizers. The Teutonic 
peoples, leaders and followers alike, were prepared to admire and 
heed Roman civil arrangements. The leaders had in many cases 
a fancy for seeming successors to the Roman Emperor. They 
were prompt, when their power was once established, to draw the 
law which was to be 1 personal ’ to their Roman subjects into a 
crude but formal code, after the manner of Theodosius. King 
Gundobad, of the Burgundians, had such a code put together out 
of the older Roman codices, the writings of Paulus and Gaius, 
and the text-books and interpretations of the schools, so early as 
the year 500 a.d., five years after he had given his own people a 
similar statement of their own law. The new code was the “Lex 
Romana Burgundionum” the Roman law of the Burgundians, as 
contradistinguished from their own Burgundian law; and its pro¬ 
visions were chiefly for their conquered subjects, not for them¬ 
selves. In the year 506 came the Lex Romana Visigothorum, the 
Roman code of the Visigoths, formulated at the command of 
Alaric II. and generally known now as the Breviary of Alaric, 
the best and most influential of the barbarian codes of Roman 
law. It was practically the only source of Roman law known in 
the south of France till the twelfth century. Germany and Eng¬ 
land drew their knowledge of that law from it until the eleventh 
century. In 511, or thereabouts, Theodoric the Great promul¬ 
gated a like compilation of the Roman law for his Ostrogothic 
kingdom in Italy, a compilation which we know as the Edictum 
Theodorici. It was no small evidence of Roman influence that 
these rulers sought to give their subjects written law in both 


DURING THE MIDDLE AGES. 


101 


kinds; and the fact that only priests were literate enough to 
undertake the work of codification meant that Roman principles 
would creep unawares even into the statements of native law; 
for the polity and learning of the Church had its roots in the tra¬ 
dition and law of Rome. 1 Personal ’ law, nevertheless, continued 
to prevail. Even the greatest statesmen, like Charles the Great, 
did not make use of their power to cut at the roots of local cus¬ 
tom or personal right. Sometimes it was the plaintiff, sometimes 
the defendant, who established his right to his own personal law 
in a suit; but in every case custom reigned where it could. 

Roman Towns. — It was in the towns that the law of 
Rome had its strongholds. There it had a centred and lively 
influence: and there it was long undisturbed by the conquerors. 
It took the Teuton a long time to learn how to live in a town, 
within limiting walls and amidst crowded houses. His native 
habit called him to a freer life: the pent-up town was too rigid, 
too conventional, too narrow a sphere for his restless energies. 
He at first contented himself, therefore, with the mere formal 
submission of the towns: it was long before he entered them to 
stay and to take part in their life. Meanwhile not only Roman 
private law, but also Roman municipal traditions, were preparing 
the cities for the power and independence which they were to 
claim and enjoy during the Middle Ages. They were to prove 
Rome’s most vital fragments. They nursed her law and repro¬ 
duced her politics. Not Italy only, but the Rhone and Rhine 
countries as well, were dotted over with these abiding places of 
the old influences which had once dominated the world: and from 
them those influences were eventually to issue forth again to fresh 
triumphs. 

The Fusion of the Two Systems. — Gradually there was 
brought about that fusion of German customs with Roman law 
and conception which, after a long intermediate fermentation, 
and in conjunction with certain institutions developed apart from 
both was to produce the conditions of modern political life. Dur¬ 
ing the Middle Ages government gradually worked its way out 
from the individualism inherent in the habits of the Germanic 
races back into an absolutism not unlike that of the Roman 
Empire. The intermediate stage was Feudalism. 


102 


POLITY AND GOVERNMENT 


Effects of Movements of Conquest upon Teutonic Institu¬ 
tions. — Feudalism was preceded, however, by modifications in 
the Teutonic system which were not the result of their contact 
with Romanized peoples so much as the direct effects of conquest. 

The New Kingship. —The migratory conquests of the 
Teutons greatly emphasized for a time the principle of individu¬ 
alism,— the principle of personal allegiance. They advanced to 
their new seats not as separate marauding bands, but as emigrant 
nations. It was a movement of races, not of armies merely. All 
the freemen of the tribes came, bringing with them their families, 
their household goods, and their slaves, as having come to stay. 
But they could not preserve, when on such an errand, the organi¬ 
zation of times of settlement and peace. They had not come, in 
fact, with nothing but their old and simple organization. They 
came with established discipline and subordination, it would 
seem,—with kingship already in some measure recognized 
amongst them, ready to be made permanent. They were forced 
to elevate the commander of the host to a new kingship. As 
confederated tribes in their old seats they had often chosen kings, 
who typified in their official dignity and sanctity the unity of 
tribal organization, who presided over the national councils, and 
who by reason of their preferred position enjoyed a somewhat 
greater state than their noble associates in the tribes. But these 
early kings, like the Greek kings of the Homeric songs, were 
scarcely more than patriarchal presidents, ‘first among peers.’ 
The later kings, in Gaul, in England, and in Spain, — the kings 
of the emigration,— on the other hand, ruled as well as reigned. 
They had first of all been the leaders who commanded the invad¬ 
ing hosts, and who had met and routed the Roman forces which 
sought to withstand the stalwart immigrants; and so long as con¬ 
quests remained incomplete they continued in command to com¬ 
plete them. Conquest being achieved, their authority was still 
necessary to keep their people together in dominant organization. 
It was only the logical and inevitable result that was reached, 
therefore, when they became possessed of sovereign powers of a 
sort such as German politics had never known before. Great as 
was the almost immediate transformation of commanders into 
kings, however, they were not yet kings such as later times were 


DURING THE MIDDLE AGES. 


103 


to see in France, after feudalism should have worked its perfect 
work. 

The Modified Land Tenure. — The invading peoples doubt¬ 
less at first took possession of the conquered territory by a ten¬ 
ure not radically different from that by which they had held 
their older home fields, except as it was modified by the fact that 
the conquered lands were already occupied by a native population, 
whom it was not their policy altogether to dispossess, and whose 
presence even as serfs would necessarily affect the system of the 
new masters. Those who were suffered to retain their holdings 
only exchanged a Roman overlordship for a German; but they 
constituted a new class of citizens in the German polity, and 
inevitably touched with Roman influences Teutonic customs of 
tenure. 

It was the circumstances of conquest, however, which 
were the chief causes of modification. The conquered territory 
was naturally disposed of, in large part at least, by the leaders 
of conquest in accordance with military and strategic require¬ 
ments. Such leaders, too, always get the lion’s share of property 
won by arms, as these lands had been; and, by their gifts, their 
chief followers also are made specially rich in the new lands. 
Thus a new bond of personal connection is created, and conditions 
pregnant with profound social changes are established. It was 
by means of such gifts and their influence that the leaders of 
conquest raised up about them proprietors all but as powerful as 
themselves, and so both cheated themselves of full kingship, and 
robbed society of all chance of harmonious unity. Power fell 
apart into fragments,—into a vast number of petty lordships, 
and the Feudal System was born. 

The Feudal System. —But the complex thing which we 
call the Feudal System was built up by no single or simple 
process. Feudalism was itself a process: the process by which 
armed and emigrant tribes, settled upon conquered territories, 
were compacted into states, and prepared for a new political 
order which should subdue the fierce individualism of the Teuton 
to a novel discipline of subordination and obedience. When the 
system had been thoroughly wrought out society resembled an 
army spread abroad and encamped, every freeman endowed with 


104 


POLITY AND GOVERNMENT 


a portion of land indeed, for his own tillage, but holding it by 
‘ military tenure , 9 upon the condition that he would serve him 
of whom he held it, his immediate overlord and commander, 
whenever his call came to the field: that he would in all things, 
with a soldier’s fealty, prove himself his faithful follower. Be¬ 
fore this migration and conquest and settlement in new lands 
the duty of each Teutonic freeman to come into the field when 
summoned had been only a personal duty, which fell upon him 
when the summons came from the free council of his people: it 
had had no connection with his title to his land. But under the 
new order of things it had become his duty as a tenant, and it was 
a duty which he owed, not to the host or to the leader with whom 
he had voluntarily associated himself for some adventure of war, 
but to him of whom he held his land. And every freeman held 
his land thus of some one, save only the king himself. Military 
society had taken root in the soil. The land supported an army 
in which every man had a fixed place and function, failing which 
he was cut off from his land. A society that might have fallen 
to pieces, had not the unbridled independence of the Teuton been 
in some way checked and disciplined, was in this way held 
loosely together by a series of personal dependencies based upon 
the tenure of land. A connected series of greater and lesser land- 
owners, the less dependent upon the greater, and all at least 
nominally dependent upon the king, the centre and titular head 
of the hierarchy: such was the pattern of feudal society. 

Genesis of the System. — It is possible to distinguish in a 
general way the several stages by which this singular order of 
political life came into existence. It was many centuries in the 
making, and forces almost without number had their effect in 
creating it in its several parts; but the main outlines of what 
took place may be briefly stated. At first, no doubt, the Teu¬ 
tonic conquerors took possession of the land they had overrun 
like the rough freemen they were: every man, great or small, 
got his share of the conquered territory, and the land was cov¬ 
ered, as in their original homes, with a yeomanry slow to call 
any man master or submit to any authority not of their own 
making. Inevitably, however, the shares of land that fell to the 
greater leaders of the invading hosts of freemen very greatly 


DURING THE MIDDLE AGES. 


105 


exceeded those which fell to the ordinary soldier, and the king’s 
share was greatest of all. Those to whom the greater grants fell 
could not use them themselves, but they could perpetuate their 
personal power and importance by making gifts ( benefices ) out of 
them to their immediate followers, gifts revocable at will and 
given upon condition of continued allegiance and service. The 
new kings, moreover, bound their immediate servants and agents 
to themselves by a strict oath of homage , which rendered them 
their men and vassals, and made of them as it were a permanent 
comitatus. It was natural to reward such personal agents also 
with benefices: and such a process in time bred an inevitable 
association of ideas. It came to be expected that vassals should 
receive gifts of lands from their lords. It also came to be taken 
for granted that those who received such gifts should render 
homage to those of whom they accepted them. And so land and 
vassalage went at last together; and every man who had land 
enough gave benefices out of it in order that he might have 
bounden vassals. 

The service rendered by a vassal was only such service 
as a freeman might render and not be degraded. It had never 
been degrading in the eyes of the Teutonic freeman to be of the 
comitatus or personal following of a great leader. It did seem to 
him degrading to pay money, to do any menial thing, to hold him¬ 
self liable to any undefined or indefinable service : but military 
service degraded no man, nor anything that went naturally with 
it. Moreover, with the greater grants of land it became cus¬ 
tomary, as the new order of things developed, to grant also a cer¬ 
tain wholesale right of jurisdiction and government, a long list of 
‘ Immunities’ or exemptions from higher authority in all matters 
not military, which in effect rendered a great estate a small 
kingdom. Those who received the greater holdings received also 
the right to be supreme lords within them: to make their own 
military levies, to coin their own money, if they chose, to lay 
taxes, and to hold their own independent courts of justice. 
Although at first such holdings were theoretically revocable at 
the will of the grantor, it naturally became more and more diffi¬ 
cult to withdraw them. They inevitably became hereditary, and 
great families throve upon them. 


106 


POLITY AND GOVERNMENT 


The theory of the system was naturally opposed to the 
principle of inheritance. Each fief (as a feudal land gift was 
called) was held upon condition of military service, and no over- 
lord or grantor could be sure that his vassal’s son would be as 
faithful or as capable as his father. Though the heir took the 
estate, therefore, it became the practice for him to pay a price 
for the privilege of succession. The principle of inheritance, 
when once it crept in, was necessarily the principle of primo¬ 
geniture : the fief and the responsibilities that went with it could 
not be divided. To grant any portion of it to another, merely 
for his use and service, moreover, was forbidden, except for a 
price paid. The fief must be kept a unit. Vassals, nevertheless, 
if they had land enough, made themselves masters in turn by 
granting portions of their land to others, upon a military tenure 
like their own, which rendered them more powerful without tak¬ 
ing away from the obligations which they still owed to their own 
overlord and seigneur. The king was the nominal overlord of 
all; and upon some he had direct claims of authority. For to 
some he granted lands and immunities upon condition that they 
should act as his officers and representatives in the maintenance 
of his authority amongst the vassals about them. But the very 
offices became hereditary; grants and sub-grants filled the country 
with a long series of overlords and tenants; and the king’s 
authority grew very remote indeed. A man’s first duty was to 
his immediate overlord, and the king seemed very far away. 
The variety was completed by the granting of great territories to 
the Church; and then the Church feudalized its lands. “ Monas¬ 
teries and bishoprics parted with their land to fighting nobles on 
the tenure of military service [to be rendered at the call of the 
king], and received these persons as their vassals.” 

It was a long time before the small freeholders, come 
from the loins of the original conquerors, were drawn into the 
network of this hierarchy. Generation after generation they 
kept their independence and their separate ownership. But the 
process of feudalism was in the end too strong for them. The 
greater feudal lords grew to be too powerful to be safe neighbors; 
the feudal lawyers established it as a fundamental maxim of the 
law that there should be no land without its lord or seigneur; 


DURING THE MIDDLE AGES. 


107 


and the poorer freemen, their ranks thinned by war, their proper¬ 
ties too small to carry the burdens of independence, and their 
power to combine every year growing less, were fain to ‘ com¬ 
mend ’ themselves to the stronger owners near at hand: to give 
up their lands, that is, into their keeping, and receive them back 
again upon condition of vassalage. For the feudal overlord owed 
protection and all that the word implied to his vassal. Without 
an overlord, a man’s only redress could be got in the distant 
courts of the king. He had no protector at hand but himself. 
He was outside the fixed order of society, and might any day be 
compelled to yield to force. And so, by the two processes of 
benefice and commendation the Feudal System was at last com¬ 
pleted. 

Local Differences in Feudal Development. — There was 
not, of course, exactly the same method of development every¬ 
where. In England, under the Saxons, and afterwards under 
their cousin Danes, the new polity seems to have been held 
together more than elsewhere by that old cement of personal 
allegiance, the relations of leader and comitatus (pages 96 and 97) ; 
in France, and elsewhere on the continent, it was generated more 
directly by territorial connections independent of leadership and 
following. In the one case men were apt to own land and possess 
power because of their personal relations with the king; in the 
other, they were likely to stand in special personal relations to 
the king because they owned land of which circumstances had 
made him titular overlord. Speaking generally, so as to include 
both France and England, it may be said that the benefice was of 
two kinds. The English benefices were most often estates granted 
by the king to his personal following, to his comites , or to his 
local officers and agents, or to his less independent adherents, on 
condition that they should hold themselves ever ready to render 
him full aid and service, and ever continue to adhere to him 
with special fidelity. The French benefices were more generally 
estates originally allodial (that is, held under no one, but by an 
independent title), which had been surrendered to the king, or 
to some other lord of the new hierarchy, to be received back again 
as his gift, for the sake of the mutual obligations of faith and 
support thus established. Nevertheless, it is not to be understood 


108 


POLITY AND GOVERNMENT 


that benefices were exclusively of the one kind in England, and 
exclusively of the other kind in Erance. In France such estates 
were very often direct gifts from the king or another superior; 
and in England they were as often surrendered freeholds as 
rewarding gifts. But each country had its predominant type of 
the benefice. Its common mark everywhere was that it was a 
landed estate: not an office or any other gift, but land held upon 
conditions of fealty to a superior. 

Commendation, on the other hand, at first at any rate, 
had no necessary connection with land. Its predominant feature 
was a personal relationship which was rather that of master and 
man than that of landlord and tenant. It seems to have been 
made necessary by the creation of benefices. As great properties 
grew up about them, as they became encompassed by the great 
network of connected estates woven out of the principle of the 
benefice, small landholders found it necessary to avoid collision 
with the growing power of their princely neighbors by throwing 
themselves into the arms of that power, by hastening to conform 
and make of their own holdings fiefs held of the lord of the 
greatest contiguous manor; and as society fell thus into regular 
gradations of personal allegiance based upon property, the free¬ 
man who was without property and the native of the conquered 
territory who found himself suffered to have liberty but not to 
hold land by any such tenure as would enable him to become a 
* beneficiary ,’ were both left without a place in the new social 
order. Owing no definite service to the powerful persons about 
them, they could claim no protection from them. They could 
be oppressed without remedy. They were driven, therefore, to 
* commend ’ themselves to some lord who could afford them security 
— such security at least as the times permitted — in return for 
fealty. This was ‘commendation.’ It had, as I have said, no 
necessary connection with the land, though the small owner as 
well as the landless person probably became his lord’s ‘man’ 
rather by commendation than by benefice. It became a univer¬ 
sally recognized maxim of law that ‘every man must have his 
lord.’ Whether through benefice or through commendation, he 
must fall into a definite place in the minutely assorted and classi* 
fied society of feudalism. 


DURING THE MIDDLE AGES. 


109 


Political Disintegration. — The state was thus disinte¬ 
grated. It no longer acted as a whole, but in semi-independent 
parts. There was no longer any central authority which acted 
directly upon all individuals alike throughout a common terri¬ 
tory. The king controlled directly, as he had the power, only 
the greater lords, who were in feudal theory his immediate vas¬ 
sals ; other men, lower down in the series, could be reached from 
above only through their immediate masters. Authority filtered 
down to the lower grades of society through the higher. It 
was a system, not of general obedience to a common law, but 
of personal obedience and subordination, founded upon land- 
ownership. 

Such, then, was the Feudal System. The king had no 
immediate subjects except the greater barons and the vassals on 
his own baronial estates, and the greater barons were obedient 
subjects only when he had armed power sufficient to compel them 
to obey. Their vassals served the king only when they them¬ 
selves did, and because they did, arming themselves for the king, 
as they would arm themselves against him, only as their lords 
commanded. In brief, every baron was himself practically 
sovereign of those holding under him. It was his decree that 
sent them into the field; it was his power that defended them 
against others who would have oppressed or plundered them; 
and it was in his courts that justice was administered between 
them. His strength and favor were their shield and title. Law 
indeed grew up in the shape of custom; but the customs of one 
barony differed from those of another. Except in so far as the 
priest and the lawyer revived, in their advice to the magnates 
who consulted them, the principles of the Roman law, still 
alive to the studies even of that time, no uniformity of practice 
prepared a unified system of law for the realm. It was an 
arrangement of governments within governments, a loosely con¬ 
federated group of inharmonious petty kingdoms. 

The Feudal Conception of Sovereignty. — The most notable 
feature of feudalism is that in its system sovereignty has become 
identified with ownership. The rights exercised by the barons 
were in many cases nothing less than sovereign. Not only did 
they decide property titles by the custom of their baronies and 


110 


POLITY AND GOVERNMENT 


private rights by laws determined in their own courts, they often 
also coined money, they constantly levied tolls upon commerce, 
and they habitually made war when they pleased upon rival neigh¬ 
bors. They gathered about them, too, as the king gathered about 
himself, an immediate following of knights, whom they endowed 
with lands as, so to say, barons. of these lesser kingdoms, the 
greater baronies. They commanded this retinue and exercised 
these sovereign powers, moreover, because of their relations as 
owners to the lands and tenantry of their domains. Sovereignty, 
l n this petty parcelled kind, had become a private hereditary 
possession, an item in family assets. Whoever should be able 
to accumulate these territorial lordships into one really great 
kingship would be owner, and, as owner, sovereign of the realm 
(page 115). 

Feudalism and the Towns. — The towns, meantime, stood 
out with not a little success against feudalization.. Many a town 
was, indeed, dominated by the threatening pile of some baronial 
castle, built over against it on the strategic vantage ground of 
hill-summit or river peninsula; and all were constrained sooner 
or later to yield at least nominal overlordship to some feudal 
superior. They kept alive, if it were only in tradition, that true 
conception of political authority which made of it, not a piece of 
private property to be bartered or sold, but the organized, the 
uttered will of a community. 

The Guilds. — Still, within the cities there early sprang 
up a semi-feudal organization of society altogether their own. 
The importance of a town rested, not upon the ownership of 
lands, though many towns owned not a little land, but upon 
wealth gained by trade and industry. The internal social organi¬ 
zation of the towns, therefore, tended more and more to turn 
upon the relations of labor. The famous guild system sprang 
into existence. Every handicraftsman, every trader, — like every 
landowner and every freeman in the society outside the towns, — 
had to find his place in a sharply differentiated social classifi¬ 
cation. Each occupation was controlled by its guild; and that 
guild was a close corporation, admitting to membership only 
Whom it chose. No one could enter save through the stringently 


DURING THE MIDDLE AGES. 


Ill 


guarded avenues of a limited and prescribed apprenticeship; and 
once in, the apprentice was bound by the rules of his order. 
City government became representative of the authority of asso¬ 
ciated guilds. No one was a citizen who was not within one of 
the privileged associations. It is a reminiscence of this old order 
of things that the building about which the city government of 
London, as of many other antique towns, still centres is known 
as the 1 Guildhall.’ Even the militia of the towns were train- 
bands from the several guilds. The town, also, had created its 
1 estates,’ its orders, as the country had done. This was its feudal 
system. 

The City Leagues. — The greater trading towns nearer the 
Baltic and along the Rhine in Ffance and in Italy took advantage? 
during the thirteenth century, of the opportunities for indepen¬ 
dent action afforded by the piecemeal condition of feudal authority 
to draw together into leagues, the better to pursue their own 
objects; and for a long time these leagues exercised the powers 
of great states, making war and peace, levying custom, con¬ 
cluding treaties and alliances. Their primary object was to 
cure those disorders of the times which made the roads unsafe 
and interfered with their trade. The greatest of these leagues 
were the Hansa, more commonly known in English writings 
as the Hanseatic (Hansa means trade-guild), and the Rhenish. 
The former centred about the great cities of Liibeck and Ham¬ 
burg, and at one time included ninety of the towns lying between 
the Baltic and the Elbe. The latter had Worms and Mainz 
as its leaders, and at one time or another had connections 
with seventy towns, some of which stood as far away from 
the Rhine as Bremen and Nuremberg, though the arteries of 
trade which it was meant to protect and keep open lay chiefly 
along the Rhine valley. Many great princes were constrained 
to connect themselves with these leagues in the heyday of their 
power. But trade alliances afforded too many occasions for 
jealous discords, and the growth of vast territorial monarchies 
too dangerous rivalries for the cities; and their leagues were 
eventually broken up. 

Unifying Influences. — Two unifying influences operated 
more or less potently during the Middle Ages to counteract the 


112 


POLITY AND GOVERNMENT 


disintegrating tendencies of the feudal system. These were the 
Roman Catholic Church and the Holy Roman Empire. Both 
the Church and the Empire may be said to have been shadows of 
imperial Borne. They were, by intention at least, the temporal 
and spiritual halves of the old empire of the Caesars. 

The Roman Catholic Church had, historically, a real 
connection with the veritable dominion of Borne. Before the 
Empire had been shattered by the onset of Teutons and Turks, 
Christianity had become its recognized official religion. The 
Pope in Borne represented one of the great primacies which had 
early grown up within the imperial Church: and this Church of 
the West, sundered from the Church of the East by irreconcilable 
differences of doctrine, showed an instinct for conquest which 
seemed a direct heritage from the great pagan Borne of the olden 
time. She mastered the new masters, the Teutons, and every¬ 
where insinuated herself into the new political system which 
developed under their hand. Not only had every castle its 
chaplain, every city and country-side its priest, but the greater 
ecclesiastics themselves became feudal lords, masters of baronies, 
members alike of the civil and the religious hierarchies; and 
even monasteries owned vast estates which were parcelled out 
upon a feudal tenure. 

But for all it was so interwoven with the feudal system, the 
Church retained its internal unity. The Pope’s power did not 
fall apart as did the king’s. The priest acknowledged in all 
things his allegiance to a universal kingdom, the spiritual king¬ 
dom of the Church of Borne. The Church recognized no boun¬ 
daries, whether of baronies or of states, as limits to her own 
spiritual sovereignty. Her authority extended, she claimed, over 
all kings of whatsoever grade, over all men of whatsoever rank 
or estate. The silent, unarmed forces of her influence, therefore, 
stood always on the side of an ideal unity. And they certainly 
retarded disintegration. Her lesson was brotherhood and a com¬ 
mon subjection; and that lesson, though often neglected, was 
never utterly lost sight of or forgotten. She kept alive, more¬ 
over, in her canon law, much of the civil law of Borne; her laws 
at any rate were not diverse, but always the same ; they reached 


DURING THE MIDDLE AGES. 


113 


the people and the conceptions of the time through the adminis¬ 
tration not only of her ecclesiastical courts, but also, indirectly 
no doubt, through the judgments of the baronial courts of the 
baron-bishops: and whatever tended to unify law tended to unify 
politics. The ecclesiastical power was always on the side of any 
good Catholic who proved himself capable of creating larger 
wholes of political authority, larger areas of civil unity. By 
precept and by example the Church was imperial. 

The Holy Roman Empire. — Under the direct descendants 
of Chlodwig, the once vast dominions of the Franks fell asunder 
in several pieces; but Charles the Great (768-814) reunited and 
even extended them. He brought together under his sword 
much of the territory now included in Germany, Switzerland, Italy 
(all save the southernmost part), France, and Belgium. And 
neither any Teuton nor any successor of Teutons in western Eu¬ 
rope ever gathered wide territories under his sway without dream¬ 
ing of restoring the Roman Empire and himself ascending the 
throne of the Csesars. From Charles the Great to the present 
German Kaiser the spell of the Roman example has bound the 
imagination of every European conqueror. Charles had this ambi¬ 
tion clearly in his view, and circumstances peculiarly favored its 
realization. At the same time that he reached the height of his 
power, Rome reached the acme of her discontent with what she 
considered the heresies of the Eastern See, and the political 
disorders at Constantinople gave the Roman pontiff pretext for 
casting finally loose from all Eastern connections. The Empress 
Irene deposed her son and usurped his throne; the Italians 
declared that no woman could succeed to the titles of the Csesars ; 
and the Pope, arrogating to himself the prerogatives of king¬ 
maker, crowned Charles the Great emperor of what later genera¬ 
tions have known as the Holy Roman Empire, — ‘ Holy ’ because 
created by the authority of mother Church. 

Here was a real ‘Western Empire’; the first had been only 
an administrative half of the once undivided dominions of 
the emperors. Charles gave to his empire real vitality while 
he lived; he, moreover, did what he could to hasten civil unity 
by promulgating anew the Visigothic version of the Roman law 


114 


POLITY AND GOVERNMENT 


(page 100); and, although his empire broken, up upon his death, 
an almost uninterrupted line of emperors, of one great feudal 
house or another, carried the titles of Rome. through the Middle 
Ages to modern times, now and again backing them with real 
power and always preserving for Germany a shadow at least of 
unity in a time of real disintegration. Believing themselves, 
besides, in the early times at any rate, the lineal and legitimate 
successors of the Caesars, there was special reason why every 
emperor should continue to build, so far as he had the oppor¬ 
tunity, as Charles the Great had begun to build, on the law of 
Rome as a foundation, never designedly, as Charles the Bald 
declared, enacting anything repugnant to* it. All who from time 
to time drew to the side of the imperial power in the conflicts of 
disordered ages also naturally affected the language and princi¬ 
ples of the same system. The Empire was, therefore, not only 
sometimes a silent witness and sometimes a great power for uni¬ 
fication, but also always a steady influence on the side of a system 
of law more advanced and unifying than that of feudalism. 

Centralizing Forces: the Carolingians. — The rise of the 
family of Charles the Great into power illustrates the character 
of the chief, indeed the only potent, centralizing forces of the 
feudal time. Those forces lay in the ambition of great barons. 
Under the descendants of Chlodwig (the Merowingians) the ter¬ 
ritory of the Franks tended more and more to become permanently 
divided into two distinct parts. There were often, it is true, 
more parts than two: for it was the Frankish custom to divide 
even a royal inheritance between all the sons of a deceased pos¬ 
sessor. But, as it fell out in the long run, the most permanent 
division was that between Neustria (the western half) and Aus - 
trasia (the eastern). In both of these kingdoms the Merowingian 
rulers soon degenerated into mere shadows of their imperative, 
dominant ancestors; and they were presently displaced by a 
powerful family of Austrasia, the family of Charles Martel. 
Charles Martel was Mayor of the Palace under the Austrasian 
branch of the royal family. The office of Mayor of the Palace, 
though an office in the king’s household, was, it would seem, 
filled rather by dictation of the powerful lords of the kingdom 


DURING THE MIDDLE AGES. 


115 


chan by a free royal choice. It was filled, consequently, at any 
rate in the times of which I am now speaking, by the leader of 
the great territorial chiefs, by the leader, that is, of the king’s 
rivals in power. It had indeed become an hereditary office held 
by the greatest of the baronial families. Charles Martel was a 
soldier of genius: he handed his office on to his son and his 
grandson: and they were men abler than he. His son, Pepin, 
with the sanction of the Pope, whom he had greatly served, 
became king of the Franks, in name as well as in reality, to the 
final ousting of the old line of ‘ do-nothing ’ monarchs; and 
Pepin’s grandson was Charles the Great. 

' The Capets: Concentration of Feudal Power. — In the 
tenth century a similar change was wrought in France. The 
descendants of Charles Martel (Carolingians) had in their turn 
lost vigor and become unfit for power. They were displaced, 
therefore, in the western half of their dominions (in Neustria) 
by a family of warriors whom they had endowed first with the 
county of Paris, and afterwards with the duchy of France, as at 
once a reward for their services in withstanding the incursions 
of the Northmen and a stake in the threatened territory. The 
duchy of France was-only ,a comparatively:small district about 
Paris; but the vigor and, capacity of the Capets, its dukes, 
speedily made it one.of the most important feudal properties in 
the whole of the great territory to which it was eventually to 
give its name. They became the chiefs of the baronial party, 
and when discontent with the Carling kings culminated it was 
they who became first ‘kings of the barons,’ and finally kings of 
France. Kefusing to degenerate, as the Merowingian and Caro- 
lingian princes had degenerated, they continued to develop, 
generation after generation, a kingdom destined one day to rank 
with the greatest of Europe; and that by a process planned as if 
meant to illustrate how best the feudal system might be used for 
its own destruction. By every means, — by war, by marriage, by 
contract, by stratagem, by fraud, — they drew all the greater feudal 
sovereignties into their own possession, until at length, their 
duchy of France and the kingdom of France were indeed identical; 
until, having absorbed all scattered authorities, they had made 


116 


ROMAN LAW IN EUROPE. 


sovereignty, once possessed privately in sundered pieces, again a 
whole,— but a whole which, by the strict logic of feudalism, was 
their private estate; until they almost literally possessed the 
land, and Louis XIV. could say with little exaggeration, 1 L’6tat 
c’est moi.’ They had gathered the fragments of the feudal system 
into a single hand, and had made the state itself a feudal pos¬ 
session, a family estate. 

The Piecing together of Austria and Prussia. — Later still 
the same process was repeated in Prussia and in Austria. By 
conquest, inheritance, forfeiture, marriage, contract, fraud, 
powerful feudal families pieced together those great kingdoms, 
to become in after times the bases of national organization. In 
neither Prussia nor Austria did the process go so far as in 
France, though Austria, under the house of Habsburg, became 
possessor of the imperial throne of the Holy Roman Empire, and 
Prussia, under the house of Hohenzollern, has become the central 
and dominant state of a new German Empire. 

The Diffusion of Roman Law in Europe. 

From the fifth to the twelfth centuries Roman law 
inhered in the confused civil methods of the times for the most 
part as a mere unsystematized miscellany of rules applicable to 
the descendants of the Roman provincials and observed largely 
within the towns. As the old distinctions between Roman and 
Teuton faded away, however, in the gradual mixture of the popu¬ 
lations, these rules entered more and more into the general mass 
of common custom. This process was in great part unconscious; 
there was no scientific selection in the development. 

The Barbaric Codes. — It was not from mere tradition, 
however,— not simply from Roman law transmuted into unre¬ 
corded provincial custom, — that the knowledge of these centuries 
concerning the civil law of the Empire was derived, but from 
fragments of the Theodosian legislation and of the writings of 
the jurists which had found embodiment in the Code of Alaric II. 
(page 100), which is known to quotation as the Breviary ( bre - 
viarium Alaricianum). The West Goths themselves had not long 
remained contented with that compend of the law. In the seventh 
century there had been prepared in Spain a new Lex Visigothorum 


ROMAN LAW IN EUROPE. 


117 


which contained a summary, not of Roman rules only, but of 
Gothic custom as well, and which, superseding the earlier com¬ 
pilation of Alaric, formed the basis for later codifications of 
Spanish law. But the south of France, which had once owned 
the dominion of the Visigoth, retained the Code of Alaric; it was 
transmitted thence to the north of France, to be handed on to 
Germany and England ; and for all of these countries it continued 
to be the chief, if not the only, source of Roman law until the 
eleventh or twelfth century. Charles the Great, as I have said, 
republished it, accepting it as the recognized manual of Roman 
legal principle. Even Italy had had the continuity of her legal 
tradition broken by barbarian invasion, — especially by the inroad 
of the raw Lombards, — and had had to keep the fragments to¬ 
gether as best she might amidst just such a confusion of ‘ per¬ 
sonal ’ laws as prevailed elsewhere in the once Roman world 
(page 98). 

Custom and Written Law in France. — It was at this time 
that the north and south of France came to be distinguished as 
respectively the ‘ country of custom’ (pays de coutume) and the 
* country of written law’ (pays de droit ecrit). In the south, 
which had been thoroughly Romanized for centuries, there was 
the written law of Rome ; in the north, which had never been so 
thoroughly Romanized, and which was now in its northern part 
quite thoroughly Germanized, there reigned in unrestrained con¬ 
fusion the Teutonic customs of the barbarian masters. 

The Study of the Roman Law. — But in the twelfth cen¬ 
tury the law of Rome fell upon the good fortune of being sys¬ 
tematically studied once more by competent scholars, and once 
more cultivated by scientific lawyers. And not the Code of 
Alaric, but the vastly more perfect Corpus Juris Civilis, as the 
twelfth century called it, Justinian’s (or, rather, Trebonian’s) 
great compilation, was the basis of the revived study. The new 
cultivation of the law began, naturally enough, in the Italian 
cities. There the movements of trade were quick and various; 
and there a various population was not only mixed of many ele¬ 
ments but fused and united, by intermarriage no less than by 
close social, political, and commercial intercourse. For the 
quick, informal, multifarious operations of trade Teutonic law 


118 


ROMAN LAW IN EUROPE. 


had made no more suitable provision than had the jus civile in 
the old days at Rome: a jus gentium was needed such as the 
Roman jurisprudence stood ready to supply. 1 Personal ’ law 
could not obtain where elements were so fused and united by 
common undertakings and interests as well as by an actual mix¬ 
ture of bloods. “In Justinian’s Digest the Italian jurists of the 
twelfth century found a system of law that was adequate to the 
needs of the new commerce; ” and great schools sprang promptly 
into existence for its study and propagation. The first of these 
was also to be the most famous, the University of Bologna, estab¬ 
lished late in the eleventh century, and destined to become the 
chief seat of the study of the Roman code. Pisa and other Italian 
cities then took up the new pursuit. Presently the interest 
had spread to France and to Spain, going in France first to 
Montpellier and Paris, afterwards to Bourges, Orleans, and Tou¬ 
louse, the old capital of the West Goths; and in Spain creating 
(a.d. 1254) the notable University of Salamanca. From Spain 
and France, Holland caught the fashion, giving to Europe in the 
seventeenth century the illustrious jurist Hugo Grotius, who 
created out of the great principles of equity discoverable in 
Roman Law the elevated and influential science of International 
Law. In England, too, the same studies began to be affected 
almost immediately after the rise of the school of Bologna, and 
are said to have been regularly pursued there down to the six¬ 
teenth century. 

This sudden spread and luxuriance of the study is impres¬ 
sive evidence of a common preparation and need for it. The 
cultivation of the Roman law in the schools may in some in¬ 
stances indicate a clerical influence ; but the study was too general 
and too spontaneous to be attributable mainly to this or to any 
other single cause. 

Influence of the Schools.— The Italian schools of law 
almost immediately drew to them students from all parts of 
Europe, and, in time, “ sent out masters and doctors by the hun¬ 
dreds.” Priests and laymen alike got their training in them. 
“ Returning to their homes, the civil doctors crowded the heredi¬ 
tary expounders of local usage off the judicial bench. Under the 
fostering care of kings and princes^” interested to see a centralized 


ROMAN LAW IN EUROPE. 


119 


power built up by their courts, there grew up everywhere bodies 
of accomplished lawyers and a ‘ learned judiciary 7 ; and “ Europe 
obtained a common commercial law in the Corpus Juris Civilis, 
as it had obtained a common family law in the Corpus Juris 
Canonici,” the developed jurisprudence of the Church. 

The materials upon which teachers and students alike worked in 
the schools were not the pure sources of the Roman law, but a mixture of 
Roman, canonical, and Lombard law which showed the influence of an 
earlier cultivation of jurisprudence by learned men among the Lombards 
in their school at Pavia. 

Influence of the Church. — The Roman Church had early 
effected a conquest of the Teutonic invaders, and the new masters 
of Europe had left its organizations intact. “It cared for educa¬ 
tion and dispensed charity. It drew into its domain the entire 
control of the family relations. It undertook, partly in its own 
interest, to enforce testaments,” or wills, after the Roman man¬ 
ner. The Teutonic peoples, held together by ties of consanguinity 
and accustomed to communal rather than to individual ownership 
in matters of property, had not admitted to their law conceptions 
of free contract, individual ownership, and succession by will 
such as the developed jurisprudence of Rome had given currency 
to. But the will, the contract, and the principle of separate 
ownership were indispensable to the Church if she was to build 
up her properties by the gifts and devises of pious persons to 
whom her priests were permitted to minister. “ They were also 
characteristic and essential elements in the civilization amid 
which the Church had been reared to maturity. 77 (Maine.) The 
whole weight of the Church’s power was thrown, therefore, in 
favor of the adoption of these important doctrines and practices 
out of the law of Rome. And she was able to make her great 
influence tell in all the matters to which she gave her attention 
because she “ had brought over from the Roman into the mediaeval 
world a well-developed governmental organization. She added 
to this a complete set of courts, with appeal to Rome. 77 (Smith.) 
And her priests possessed the learning of the time; were indis¬ 
pensable as counsellors and administrators, no less than as clerks ; 
were the compilers of codes, whether of Roman or of Teutonic 
rules; had in all things the ascendency of training and knowledge. 


120 


ROMAN LAW IN EUROPE. 


The currency of the Latin language had also its influence 
in spreading abroad the forces which were to bring in the Roman 
law. It was everywhere in Europe the speech of commerce, of 
learning, and of public business: the common repository and 
vehicle of knowledge and of the forms of important transactions. 

Entrance of Roman Law into the Legal Systems of Europe. 
— Of course this widespread interest in the study of Roman law 
was not all speculative. The study and the practice of the law 
acted and reacted on one another. Its rules were more and more 
consciously and skilfully fitted into the growing law of the king¬ 
doms which were emerging from the feudal system because it was 
being adequately mastered and systematized at the universities ; 
and it was being mastered and systematized at the universities 
because it was being more and more called for in the actual ad¬ 
ministration of justice. Its use and its cultivation went hand in 
hand. 

In France. — Roman law came into use with much the 
same pace with which the Capets advanced to complete power, 
and triumphed with the perfecting of the centralization which 
they effected. Louis IX. ordered the Roman law translated into 
French; established the right of the crown to hear appeals from 
the feudal courts in all cases ; sent royal judges on circuit to 
hear complaints of infringed rights; and erected at Paris the 
famous Parliament of Paris as the supreme tribunal of the realm. 
The feudal lords of France were the nominal members of this 
court, but trained jurists ( legistes ), appointed as experts to assist 
them, became in practice its real members. Schooled in the 
Roman law, they admitted its principles into all their decisions; 
and they gave to the king from the s.ame source the maxim which 
declared the will of the prince to be law. As the king’s jurisdic¬ 
tion grew, the principles of Roman jurisprudence gained wider 
and wider acceptance and supremacy. 

The Method by which Roman law crept in was always the 
same : it was introduced, not by legislation, but by adjudication, 
by the decision of cases in the roj-al courts. It was here that the 
learning of the trained lawyers told, and the desire of the king 
to see the single power of the throne magnified. The royal 


ROMAN LAW IN EUROPE. 


121 


courts, as they were developed in the provinces, applied local 
custom in their decisions, for the most part, only upon very con¬ 
clusive proof of its existence and its definiteness, and in the 
absence of definite and conclusive proof of a contrary custom 
resorted always to the Roman as to a ‘ common’ law. The law 
grew thus, and was made consistent, by judgment, by written 
opinion, by royal ordinance; and a French jurisprudence began 
to make its appearance, working upon the various materials 
which were to enter into the final law of the land. 

And presently the Roman law came, so to say, from out 
the nation to meet the royal system. Very early in Berri, Bour- 
bonnais, and Auvergne, the central districts of France, the law 
of Rome had been consciously adopted as the common law of 
the land, to be appealed to in the absence of proof of any special 
custom or enactment. Subsequently it came to be considered as 
in some sort the supplementary common law of all France, for, 
though never established as such in the north of France, it was 
even there appealed to in doubtful cases as ‘ written reason.’ 
The Code Napoleon , the last great codification of French law, has 
been described as in great part a republication of the laws of 
Justinian as those laws have been modified and fitted to new cir¬ 
cumstances by the processes of French history. 

Local Customs in France. — It is important to observe 
that the unifying, harmonizing influences exercised by the grow¬ 
ing royal jurisdiction were, for a long time at any rate, influ¬ 
ences which affected procedure much more than the internal, 
essential elements of legal principle. The differentiation between 
district and district which had taken place in the process of feu- 
dalization had been of the sharpest, most decided character. 
When the Capets first assumed the titles of kingship there were 
duchies as great as France. The work of extending and consoli¬ 
dating the kingdom consumed several centuries ; and, meanwhile, 
each petty sovereignty was developing its own law apart. Much 
of the territory which afterwards became part of France was, 
during the same period, moreover, in foreign hands, held by 
England or Burgundy. The kingdom as finally consolidated, 
therefore, presented a very great variety of deeply rooted and 
persistent local laws and customs. Normandy had one set of 


122 


ROMAN LAW IN EUROPE. 


customs, Berri a very different set, Anjou a third, Brittany a 
fourth; and so throughout the once piecemeal country. 

Unifying Influence of the Royal Prerogative. —The in¬ 
fluence of the royal jurisdiction upon this heterogeneous mass of 
differing laws was, as I have said, at first rather to unify and 
systematize the procedure of the local courts, which administered 
local law, than to effect changes in the local customs themselves. 
Since appeals to the king’s justice were possible in all cases, the 
formal method of appeal tended to become the same everywhere; 
and the methods of the king’s courts in dealing with appealed 
cases more and more tended to set the fashion of procedure 
throughout the loose system, though the royal judges continued 
to decide appealed cases according to the law of the district from 
which they were brought up. 

By degrees, however, new ideas and principles, as well as 
new modes of procedure and appeal, were infused into local 
justice. The law and the legal practice of each district alike 
more and more distinctly and consciously approximated to the 
models of organization and to the standards of decision obtaining 
in the king’s courts. The territorial tribunals accepted the ser¬ 
vices of lawyers trained in Roman principles and inclined towards 
regal precedents; and the local law officers of the crown were of 
course everywhere ready to effect whatever was within reach of 
their functions or example in the way of bringing local custom 
around to the rules of universal acceptance to be found in Roman 
law and regal decision. Independently, moreover, of the influ¬ 
ence of the crown, the Roman law was entering the local courts, 
becoming common law in Auvergne and Bourbonnais, as we have 
seen, before it became the common law of France. 

Through the Parliament of Paris the Roman law had, so 
to say, a double door of entrance. The jurisdiction of that court 
was both spiritual and temporal: so that both the Code of Jus¬ 
tinian and the canons of the Church contributed their versions 
of Roman judicial practice and tradition to its findings. 

In the Code Napoleon, the final codification of French law 
as it had emerged from the long processes of the Middle Ages, 
we find a statement of the law which was in fact made possible 
by the earlier labors of great French jurists, like the accomplished 


ROMAN LAW IN EUROPE. 


123 


Pothier. In matters of inheritance, in the rules which govern 
the family relations, and in the law of marriage the customs of 
France find their place, though as if they had been digested and 
formed anew under the influence of the Homan jurisprudence. 
In the law of contract, the law of property, the rules of judicial 
trial, and all questions of the legal burdens which may be placed 
upon land, Homan law has had a chief place of influence. Every¬ 
where, however, there are traces and elements of fusion. It is a 
law written over with history and with the labors of trained 
students of the law. 

In Germany there was no central power such as that which 
served to build together the legal systems of France and of Eng¬ 
land. The feudal system had done its work more thoroughly 
there than elsewhere : and Germany emerged from the Middle 
Ages, not a nation, but a congeries of petty states. There was 
a form of union among them, indeed, in the Holy Homan Empire, 
and throughout all the changes of German history the imperial 
influence had sought to shelter and to foster Homan law, the law 
of empire and of princely rule. The imperial courts, the impe¬ 
rial lawyers, the imperial party in Germany, were always admin¬ 
istrators or advocates of its principles; and when the house of 
Habsburg came to the imperial throne, as when other powerful 
emperors had reigned, there was no small potency in these influ¬ 
ences. But the final reception of the Homan law was postponed 
in Germany until the sixteenth century, and was due to other 
forces than those associated with the royal power. 

Germany's Reception of Roman Law. — The reception of 
the Homan law into the law of Germany was due to various cir¬ 
cumstances, but not entirely to the poverty or imperfections of 
German law. German law at some points may fairly be said to 
have been superior to Homan law in its suitability to the needs 
and conditions of the time. Neither was the law of Home received 
as naturally supplementary to German law and of a sort to effect 
its further and more complete development; for there were not 
a few radical oppositions of principle between the two systems. 
For example, Homan law was based upon the recognition of the 
entire equality of persons, while German law ranked them in 
orders, with differing values and privileges; Homan law allowed 


124 


ROMAN LAW IN EUROPE. 


the free alienation of land and set up the principle of absolute 
individual ownership, while German law had at its root ideas of 
communal and family ownership and put many restrictions upon 
alienation. Moreover, there could be no doubt that the law of 
feudal relationships had had as complete a development in Ger¬ 
many as anywhere else in the European world; and yet, along 
with the Roman law, which she took from the schools and com¬ 
mentators of Italy, Germany took also the Italian Feudal Law, 
to which the Italian students had given a similar systematic 
formulation. 

The Roman law was received in Germany largely because of 
the feebleness and disintegration of the judicial system there; 
because the old popular courts, which administered only an un¬ 
changing custom and tradition, inevitably decayed with the 
growth of society; because single judges trained to the law were 
substituted, and the only law in which one could be trained was 
the Roman law of the Italian schools. The introduction took 
place, not because princes controlled the courts, but because 
litigants insisted. They were dissatisfied with the administra¬ 
tion of justice in the unlearned courts. They wanted a court, 
a judge, learned in the law. “ The single judge must be a learned 
judge, by the same necessity by which the old popular court was 
an unlearned court.” 

Throughout the Middle Ages the popular courts remained 
the only vital courts in Germany; when they first began to give 
way their place was taken by courts that were no better, being 
made up of some unlearned agent of the feudal lord of the dis¬ 
trict, assisted by assessors as little trained for the function as 
he. In France and in England a native jurisprudence grew up, 
because the royal power was able to set up a system of courts, 
to put trained officers into them, and to draw differing local cus¬ 
toms to a common administration and development. But there 
was no power capable of rendering the like service in Germany; 
the decay of the popular courts did not mean the substitution 
of an indigenous learning. The single judges finally set up there 
were learned, if trained at all to the law, in the Italian jurispru¬ 
dence. Germans had long studied in Italy; and the Roman law 
of the Italian schools was taught from their foundation in the 


ROMAN LAW IN EUROPE. 


125 


German universities. All theological students were obliged to 
study the Roman and canonical law as part of their regular pro¬ 
fessional training; for it formed the basis of the administration 
of the spiritual courts, which had so long stood alongside the 
courts of ordinary law in every part of Europe. 

The law that was received was not the Corpus Juris of Jus¬ 
tinian, but the common law of Italy, founded upon the Roman, 
the canon, and the Lombard law. “ The Corpus Juris was terra 
incognita to the German jurists of the period of the reception.” 
They brought in, “not the Pandects, but the Usus modernus 
Pandectarum of the Italian lawyers.” The new law was not, of 
course, accepted whole and in bulk. It entered, in Germany as 
elsewhere, as ‘ subsidiary ? law, not as the native law of the land. 
It nevertheless received everywhere a decided preference in the 
courts. While accepting Roman legal rules as prima facie con¬ 
clusive of the rights of a suitor, they imposed upon those who 
alleged established local usage in opposition to it the necessity of 
furnishing conclusive proof of the existence and acceptance of such 
usage as law. Roman law, in brief, they accepted on its own 
authority, Germanic custom only on the authority of indubitable 
circumstantial testimony. 

The outcome was that, speaking most generally, the 
Roman law prevailed in the field of procedure, in the field of 
criminal law, in the field of contract, and in the field of the law 
of inheritance; while German law persisted in respect of the 
law of real property, in respect of family law, and wherever law 
was to be drawn on to the recognition of new relationships, 
like those of association and incorporation, in a changing 
society. 

In England, a strong native jurisprudence kept the for¬ 
eign law out. Always held off from the rest of Europe by the 
sea, a separate system of law was made possible for her, no less 
than an independent government. The royal power was able to 
make of the favored island a compact kingdom : and men of the 
masterful Plantagenet blood gave it a centralized administration 
of justice such as no other European state was able to obtain 
while yet it was in its early formative stage of growth. English 


126 


ROMAN LAW IN EUROPE. 


judges put together a consistent English law, and there was no 
need for a foreign jurisprudence. 

And yet the Roman law was not wholly excluded. The 
Romans had governed Britain four hundred years, bending the 
provihce to the purposes of their administration with their usual 
thoroughness. We know that Papinian, the greatest of Rome’s 
jurists, himself administered the law in Britain, and we have 
every reason to believe that its promulgation there was thorough, 
its rootage full four hundred years deep. It can hardly be that 
the Saxons wholly eradicated it. We know that many Roman 
municipalities on the island survived all conquests : and we know 
that the priests of the Church of Rome early took back to Eng¬ 
lished Britain conceptions steeped in Roman jurisprudence. Bede 
testifies that the Saxon laws were codified under the auspices of 
the clergy and that Roman codification was the model. We have 
seen that Roman law was studied in England almost as early as 
in mediaeval Italy herself, the study being continued without 
serious break for more than three centuries (page 117) ; and the 
works of the earliest English legal text-writers, such as Glanvil, 
Bracton, and the author of the Fleta, abound in tokens of a close 
familiarity with the laws of the imperial codes, are full of their 
very phraseology indeed. The so-called laws of Henry I. are 
said by competent legal scholars to consist, to the extent of fully 
one-half their content, of precepts borrowed from Rome. Through 
the ecclesiastical courts, which down to the middle of the present 
century administered upon all estates in England, and upon all 
trusts; through the Court of Chancery, whence has issued the 
system of English equity, and which was presided over in its 
formative period by the great ecclesiastics who were the first 
chancellors, afterwards by great lawyers, such as Lord Hardwicke 
and Lord Thurlow, deeply versed in the civil law of Rome and 
apt to draw suggestion and even concrete rule from it; and 
through the Admiralty Courts, always controlled by the rules of 
the Civil Law, England has drawn directly or indirectly from 
Roman sources, in supplement of her own indigenous customs; 
and not many portions of her law have escaped being in some 
degree marked by the same influences that have moulded the law 
of the rest of Europe. Her borrowings, nevertheless, have been 


ROMAN LAW IN EUROPE. 


127 


of form and method rather than of substance, and the great bulk 
of her law is her own. 


Representative Authorities. 

Adams , George B., Civilization during the Middle Ages, New York, 1894. 

Brunner , H., Deutsche Rechtsgeschichte. 2 vols., 1887-1892. 

Bryce , The Holy Roman Empire. New York, 1911. 

Church , R. W., The Beginning of the Middle Ages. (Series of Epochs 
of Modern History.) London, 1910. 

Curteis, A. M., History of the Roman Empire from the Death of Theo¬ 
dosius the Great to the Coronation of Charles the Great, 395-800. 
1875. 

Duruy , Victor, Histoire du Moyen Age, depuis la chute de l’Empire 
d’Occident jusqu’au milieu du XV e Siecle. 1 vol. Paris. 8th ed., 
1875. Trans, by G. B. Adams, New York, 1891. 

Emerton , E., Introduction to the Study of the Middle Ages, Boston, 1889, 
and Mediaeval Europe, Boston, 1894. 

Freeman , E. A., Historical Essays. Series I. 

Gibbon , E., Decline and Fall of the Roman Empire. Smith’s ed. New 
York, 1880. 

Guizot , F., Lectures on the History of Civilization in France and in 
Europe. 

Hallam , H., View of the State of Europe during the Middle Ages, 
especially Chapter II., which contains what is possibly the best brief 
account in English of the Feudal System. 

Heeren , A. H. L., Manual of the History of the Political System of 
Europe and Its Colonies. Oxford, 1834. 

Kingsley , Chas., The Roman and the Teuton. 

Macaulay , T. B., Essay on Ranke’s History of the Popes. 

Milman , H. H., History of Latin Christianity. 8 vols. New York. 

Oman , Ch., Europe, 476-918, New York and London, 1893. 

Ranke , L. von, History of the Popes. 

Schroeder , R., Lehrbuch der deutschen Rechtsgeschichte. 3d ed., 1898. 

Sheppard , J. G., The Fall of Rome and the Rise of the New Nationali¬ 
ties. 1 vol. London and New York, 1861. 

Concerning the introduction of Roman law into modern European legal 

systems, see, besides authorities mentioned at end of Chapter II. — 


Jenks , Edward, Law and Politics in the Middle Ages, 2nd ed. London. 
1913-1917. 


128 


ROMAN LAW IN EUROPE. 


Sohm, Rudolf, Die deutsche Rechtsentwickelung und die Codifications- 
frage, in Griinhut’s Zeitschrift fur das Privat und Oeffentliche Recht 
der Gegenwart, I., 245-280. 

Stein, Lorenz, Das Wesen der Reception und die Reception des griech- 
ischen Rechts im romischen Recht, in Griinkut, I. 722 ff. 

Stephen, Sir James, Lectures on the History of France, especially lectures 
I.-V., inclusive. 

Tomkins, F. J., and Jencken, II. D., Modern Roman Law. 

Vinogradoff, P., Roman Law in Mediaeval Europe. London and New 
York, 1909. 

Waitz, Georg, Deutsche Yerfassungsgeschichte, 8 vols. The classical 
work on early Germanic institutions and the development of the 
German constitution. 


VII. 


THE GOVERNMENT OF FRANCE. 

The Growth of the French Monarchy. — The full political 

significance of the history of France can be appreciated only by 
those who keep in mind the chief phenomena of the widening 
monarchy, the successive steps by which the Dukes of France, 
the capable Capets, extended their power and the name of their 
duchy over the whole of the great territory which was to be in¬ 
herited by Louis XIV. The course of French history is from 
complex to simple. In the days of Hugh Capet ‘France * was the 
name of only a single duchy centering in Paris, of but one of a 
great number of feudal lordships equally great, equally vigorous, 
equally wedded to independence. The duchy’s advantage lay in 
the fact that her dukes had been chosen for leadership and that 
they were capable of leadership, rather than in the possession 
of preponderant strength or superior resources. To the west of 
her lay the solid mass of Normandy; to the north lay the terri¬ 
tories of the Counts of Flanders and Vermandois, and to the east 
the territory of the Count of Champagne; southward lay the great 
duchies of Burgundy and Aquitaine, beyond them the lands of 
Toulouse; alongside of Normandy, Anjou and Brittany stretched 
their independent length to the west. And these were only the 
greater feudal sovereignties. Within and about them lay other 
districts not a few with masters ready to assert privileges without 
number in contradiction of all central rule. The early history 
of France is the history of a duchy striving to become a kingdom. 
‘France’ holds a good strategic position, and fortune has made 
her dukes titular kings over their feudal neighbors, but still she 
is in reality only one among many duchies. 

By slow and steady steps, nevertheless, a work of unifica- 
129 


130 


THE GOVERNMENT OF FRANCE. 


lion is wrought out by the Capets. In every direction they stretch 
out from their central duchy of France their hand of power and 
of intrigue and draw the pieces of feudalized Neustria together 
into a compact mass. The work is thoroughly done, moreover, at 
almost every stage. Out of populations as heterogeneous as any in 
Europe they construct a nation singularly homogeneous; out of 
feudal lordships as strong, as numerous, as heady, and as stiffly 
separate as any other equal territory could show, they construct 
a single kingdom more centralized and compacted than any other 
in Europe. The processes of these remarkable achievements give 
to the history of the French monarchy its distinctive political 
significance: the means which the Capets devised for solidifying, 
and, after its solidification, for enlarging and effectuating their 
power, furnish some of the most suggestive illustrative material 
anywhere to be found for the general history of government. 

Perfection of the Feudal System in France. — The feudal 
system worked its most perfect work in France. The opportuni¬ 
ties of feudalism there were great. Neustria, the western, Gal¬ 
lic half of the great Frankish kingdom, was early separated from 
Austrasia, the eastern, Germanic half (pages 114-115), and its 
separateness proved the cause of its disintegration. Burgundy, 
Brittany, and Aquitaine sprang to the possession of unchecked 
independent power round about it; the Normans thrust their 
huge wedge of territory into it; battle after battle between those 
who contended for the possession of the pieces of the great em¬ 
pire which Charles the Great had swept together first decimated 
and finally quite annihilated the sturdy class of Frankish freemen 
whose liberties had stood in the way of local feudal absolutism; 
privilege grew in the hands of feudal lords while prerogative 
declined in the hands of those who sought to be kings; those 
who possessed privilege built for themselves impregnable castles 
behind whose walls they could securely retain it:—and feudal¬ 
ism had its heyday in France. 


It is reckoned that in Hugh Capet’s day the “ free and noble pop¬ 
ulation” of the country out of which modern France was to be made 
numbered “about a million of souls, living on and taking their names 
from about seventy thousand separate fiefs or properties: of these fiefs 
about three thousand carried titles with them. Of these again, no less 


THE GOVERNMENT OF FRANCE. 


131 


than a hundred,—some reckon as many as a hundred and fifty, — were 
sovereign states, greater or smaller, whose lords could coin money, levy 
taxes, make laws, administer their own justice.” 1 Of these one hundred, 
however, only some eight or ten were really powerful states. 

Materials of the Monarchy. — Such were the materials 
out of which the Capets had to build up their monarchy. It was 
their task to undo the work of feudalism. Nor were these the 
only materials that they had to handle in the difficult under¬ 
taking. There were other privileges besides those of the feudal 
barons which it was necessary to destroy or subordinate before 
they could see their power compact and undisputed. 

Local Self-government. —Notwithstanding the fact that 
in most districts of the divided territory the power that ruled 
him was brought close to every man’s door in the person of his 
feudal lord and master, there were many corners of the system 
which sheltered vigorous local self-government. The period of 
the greatest vitality of the feudal system was, indeed, the only 
period of effectual local self-government that France has ever yet 
known. The eventual supremacy of the Crown, which snatched 
their power from the barons, also destroyed local self-government, 
which the barons had in many cases suffered to grow; and neither 
the Revolution nor any of the governments which have succeeded 
the Kevolution has yet restored it to complete life. Local liber¬ 
ties were taking form and acquiring vigor during the very period 
in which the monarchical power was making its way towards 
supremacy; and it was by these local liberties that the kings 
found themselves faced when their initial struggle with feudal¬ 
ism was over. It was their final task to destroy them by per¬ 
fecting centralized administrative organization. 

Rural Communes. — While feudalism was in its creative 
period, while the forces were at work, that is, which were shap¬ 
ing the relations of classes and of authorities to each other, it was 
not uncommon for feudal lords to grant charters to the rural 
communes lying within their demesnes. In and after the twelfth 
century these charters became very numerous. They permitted 
a separate organic structure to the communes, regulated the ad¬ 
mission of persons to communal privileges, laid down rules for 

1 G. W. Kitchin, History of France , Yol. I., p. 180. 


132 


THE GOVERNMENT OF FRANCE. 


the administration of property in the commune, set forth feudal 
rights and duties, prescribed the corvees, etc. “Everywhere a 
general assembly of the inhabitants directly regulated affairs,” 
delegating executive functions to communal officers, who acted 
separately, each in the function with which he was specially 
charged. These officers convoked the general assembly of the 
people for every new decision that it became necessary to take 
with reference to communal affairs. The principal affairs within 
the jurisdiction of the assembly were, “the administration of 
communal property, which in that period was very important, 
police, and the collection of the taxes both royal and local.” 1 

In the administration of justice, also, the Middle Ages 
witnessed in France not a few features of popular privilege. The 
peasant as well as the nobleman had the right to be tried by his 
peers, —by persons of his own origin and station. In the courts 
of the feudal barons the vassals were present to act as judges, 
much as the freemen were present in the English county courts 
(secs. 836, 942). 

Liberties of Towns: the Roman Municipalities. — The 

privileges of self-direction granted to the rural communes, how¬ 
ever, were privileges granted, so to say, inside vassalage: the 
members of the communes were not freed from their constant 
feudal duties. Many towns, on the contrary, acquired and main¬ 
tained a substantial independence. When the earliest Frankish 
kings failed in their efforts to establish a power in Gaul as strong 
and as whole as the Roman power had been, and the Frankish 
dominion fell apart into fragments whose only connection was a 
nominal subordination to a central throne, there were others 
besides the great, landowners to avail themselves of the oppor¬ 
tunity to set up independent sovereign powers of their own. The 
Franks, as we have seen, had found many Roman cities in Gaul, 
and, not at first taking kindly to town life, had simply conquered 
them and then let them be (page 101). In these, consequently, 
the old Roman organization had endured, freed from Roman dic¬ 
tation. The Franks who entered them later took character from 
them almost as much as they gave character to them. Germanic 
principles of moot-government and individual freedom entered, 
1 H. de Ferron, Institutions Municipals et Provinciates Comparees , p. 3- 


THE GOVERNMENT OF FRANCE. 


13a 


to a certain extent, like a new life-blood into the Roman forms, 
and compact, spirited, aggressive, disciplined communities were 
formed which were quick to lay hold of large privileges of self- 
rule, and even to assume semi-baronial control of the lands lying 
about them, in the days when independent powers were to be 
had for the seizing. The organization which Roman influences 
had bequeathed to these towns was oligarchical, aristocratic: the 
governing power rested with close corporations, with councils 
(curice) which were cooptative, filling their own vacancies. But 
forces presently appeared in them which worked effectually for 
democracy. The Christian Church, as well as the barbarian 
Teuton, took possession of Gaul: the greater towns became the 
seats of bishops; and the bishops threw their weight on the side 
of the commons against both the counts outside the towns and the 
oligarchs inside. Only so could the magnates of the Church es¬ 
tablish themselves in real power. In most cases the ecclesiastics 
and their restless allies, the commons, won in the contest for 
supremacy, and democracy was established. 

The Italian towns, with their ‘ consuls ’ and their other imitations of the 
old Roman republican constitution, are perhaps the best examples of this 
renaissance of democracy. 

The Non-Roman Municipalities. —These Roman towns, 
however, were to be found for the most part only in the south 
and along the Rhine. North of the Loire, as the Franks took 
gradually to city life, there sprang up other towns, of Germanic 
origin and character; and these were not slow to agitate for grants 
of special privileges from their baronial masters. In very large 
numbers they obtained charters, — charters, however, which were 
to give them a connection with the feudal system about them 
which the towns of the south, antedating feudalism, did not for 
some time possess. They were given substantial privileges of 
self-government, but they were not severed from baronial control. 
They conducted their affairs, on the contrary, under charters 
in which the relative (customary) rights of both seigneur and 
burgher were definitely ascertained, by which seigneurial author¬ 
ity as well as burgher privilege was fully recognized, and under 
which, moreover, the authority of the seigneur was actively ex- 


134 


THE GOVERNMENT OF FRANCE. 


ercised through the instrumentality of a Pr6vot, the lord’s servant 
and representative in city affairs. 

This, the more secure form of municipal self-government, 
because the form which was most naturally integrated with the 
political system about it, — a form, moreover, which very natu¬ 
rally connected itself, mediately, with the supreme seigneurial 
authority of the king, — became in course of time the prevalent, 
indeed the almost universal, type in France. The ‘prevotal ’ 
town is the normal town down to the end of the fifteenth century. 

Not all of this development was accomplished peacefully 
or by the complaisance of the barons. Many cities were driven 
to defend their privileges against the baronage by force of 
arms; some, unable to stand out unaided against feudal aggres¬ 
sions, were preserved from discomfiture only by succor from the 
king, whose interest it served to use the power of the townsmen 
to check the insolent might of the feudal lords; others, again, 
were repeatedly constrained to buy in hard cash from neighbor 
barons a grudging tolerance for their modest immunities. The 
kings profited very shrewdly by the liberties of the towns, draw¬ 
ing the townspeople very closely about themselves in the struggles 
of royal prerogative against baronial privilege. As supreme 
lords in France, they assumed to make special grants of munici¬ 
pal citizenship: they made frequent gifts of bourgeoisie to dis¬ 
affected vassals of the barons, — gifts so frequently made, indeed, 
that there grew up a special class of royal townsmen, a special 
bourgeoisie du roi. 

The Towns and the Crusades.—Not the least important 
element in the growth of separate town privileges was the influence of 
the crusades upon the power of the nobility. When the full fervor of 
crusading was upon France, her feudal nobility were ready to give up 
anything at home if by giving it up they might be enabled to go to the 
holy wars, to the prosecution of which Mother Church was so warmly 
urging them. Their great need was money; money the towns had; and 
for money they bought privileges from departing crusaders. Very often, 
too, their one-time lords never returned from Palestine — never came 
back to resume the powers so hastily and eagerly bartered away before 
their departure. When they did return they returned impoverished, and 
in no condition of fortune to compete with those who had husbanded 
their resources at home. On every hand opportunities were made for 
the perpetuation of town privileges. 


THE GOVERNMENT OF FRANCE. 


135 


Municipal Privileges. —The privileges extorted or bought 
by the sturdy townspeople were, to speak in general terms, the 
right to make all the laws which concerned only themselves, the 
right to administer their own justice, the right to raise all taxes 
(as well those demanded by king or baron as those which they 
imposed upon themselves for their own purposes) in their own 
way, and the right to discipline themselves with police of their 
own appointing. Such villages as contrived to obtain separate 
privileges could of course obtain none so extensive as these. 
They often had to seek justice before baronial rather than before 
their own tribunals; they could by no means always choose their 
own way of paying unjust charges; they had often to submit to 
rough discipline at the hands of prince’s retainers; oftentimes 
the most they could secure for themselves was a right of self- 
direction in petty matters in which no one else was immediately 
interested. 

The administrative functions exercised by the towns have been 
thus summed up: the administration of communal property, the mainte¬ 
nance of streets and roads, the construction of public edifices, the support 
and direction of schools, and the assessment and collection of all taxes. 1 

Forms of Town Government. — The forms of self-govern¬ 
ment in the towns varied infinitely in detail, according to place 
and circumstance, but the general outline was almost everywhere 
the same. Often there were two assemblies which took part in 
the direction of municipal affairs, an Assembly of Notables and 
a General Assembly of citizens. These two bodies did not stand 
to each other in the relation of two houses of a single legislature; 
they were separate not only, but had also distinct functions. 
The popular body elected the magistrates; the select body advised 
the magistrates; the one was a legislative, the other an executive, 
council. More commonly, however, there was but one assembly, 
the general assembly of citizens, which elected the magistrates, 
exercised a critical supervision over them, and passed upon all 
important municipal affairs. The magistracy generally consisted 
of a mayor and ^ldermen who acted jointly as the executive of 
the city (its corps de ville ), the mayor in most cases being only 


1 Ferron, p. 8. 


136 


THE GOVERNMENT OF FRANCE. 


the president, never the ‘chief executive/ of the corporation, and 
mayor and aldermen alike being equal in rank and in responsi¬ 
bility in exercising their corporate functions. 

Decay or Destruction of Municipal Self-government. — 
From this democratic model there were, of course, in almost all 
cases, frequent departures, quite after the manner formulated by 
Aristotle (page 31). Oligarchy and tyranny both crept in, time 
and again; nowhere did local liberties permanently preserve their 
first vigor; everywhere real self-government sooner or later suc¬ 
cumbed to adverse circumstances, crushed in very many cases by 
the overwhelming weight of the royal power. Generally such 
changes were wrought rather by stress of disaster from without 
than because of degeneracy within: and in very few cases indeed 
did local liberty die before the community which had sought to 
maintain it had given proof of a capital capacity for self-govern¬ 
ment. The independence of the cities died hard and has left 
glorious memories behind it. 

Pays d’Etats. — Early times saw self-government in the 
provinces also. Many a feudal province had had its own ‘Es¬ 
tates/ its own triple assembly, that is, of nobles, clergy, and 
burghers, which met to discuss and in large part, no doubt, to 
direct provincial affairs. The provinces of old France, thirty-six 
in number, represented separate feudal entities, much as the 
English counties did (sec. 836). The towns, on the other hand, 
in the central and northern portions of France at least, repre¬ 
sented nothing but grants of privilege, were nothing but com¬ 
munities which had been given a special and exceptional place 
in the feudal order. The assemblies of the provinces, accord¬ 
ingly, were not primary or democratic like those of the towns, 
but were made up by‘estates,’ — models for the States-General 
which appeared in 1302 (page 139). 

The provincial Estates were probably in their origin nothing else 
than normal feudal councils, made up, as they were, of representatives 
of all who possessed corporate or individual privileges, whose judgments 
and advice feudal dukes and counts found it redound to their greater peace 
and welfare to hear and heed. „ 

In several of the provinces, as, notably, in Languedoc 
and Brittany, these provincial Estates continued to meet and to 


THE GOVERNMENT OF FRANCE. 


13? 


exercise considerable functions down to the time of the Revolu¬ 
tion. Such provinces came to be distinguished from the others 
as pays d'etats (provinces having Estates), and it is largely from 
the privileges of their assemblies that we argue the general nature 
of the powers possessed by those which had passed out of exis¬ 
tence before history could catch a glimpse of them. We see the 
Estates of the pays d’etats clearly only after the royal power has 
bound together all the provinces alike in a stringent system of 
centralization; they sit only at the king’s call; their resolutions 
must be taken in the presence of the king’s provincial officers 
and must await the regal sanction; they live by the royal favoi 
and must in all things yield to the royal will. Nevertheless their 
privileges were still so substantial as to make the pays d'etats the 
envy of all the rest of France. They bought of the Crown the 
right to collect the taxes demanded by the central government; 
they retained to the last the right to tax themselves for the ex¬ 
penses of local administration and to undertake and carry through 
entirely without supervision the extensive improvements in roads 
and watercourses to which the local patriotism bred by local self- 
government inclined them. Restricted though their sphere was, 
they moved freely within it, and gave to their provinces a vital¬ 
ity and a prosperity such as the rest of France, administered, as 
it was, exclusively from Paris, speedily and utterly lost. 

Territorial Development of the Monarchy. — The process 
of the organic development of the monarchy which centred in the 
duchy of France began with territorial expansion and consoli¬ 
dation. For eight centuries that expansion and consolidation 
went steadily on; but its successful completion was assured be¬ 
fore the extinction of the first, the direct, line of Capets in 1328. 
Before that date Philip Augustus had wrung Normandy from 
England and had added Yermandois, Auvergne, Touraine, Anjou, 
Maine, and Poitou to the dominions of his Crown, and his succes¬ 
sors had so well carried forward the work of expansion that before 
the Valois branch came into the succession only Flanders, Bur¬ 
gundy, and Brittany broke the solidity of the French power in 
the north, and only Aquitaine, still England’s fief, cut France 
off from her wide territories in the southeast. It had been the 
mission of the direct line of the Capets to lay broadly and irre* 


138 


THE GOVERNMENT OF FRANCE. 


movably the foundations of French unity and nationality, and 
they had accomplished that mission. They gave to their mon¬ 
archy the momentum which was afterwards to carry it into full 
supremacy over Brittany, Aquitaine, and Burgundy, over the 
Rhone valley, and over the lands which separated her from the 
Rhine. 


The Crusades and the Monarchy. —The monarchy, even more 
than the towns (page 134), profited by the effects of the crusades on the 
feudal nobility. So great was the loss of life among the nobles, so great 
was their loss of fortune, that they fell an easy prey to the encroaching 
monarchy. During the first crusades the French kings stayed at home 
and reaped the advantages which the nobles lost; during the last crusades, 
the kings were strong enough themselves to leave home and indulge in the 
holy warfare in the East, without too great apprehension as to what might 
happen to the royal power in their absence. 

Institutional Growth. — Of course along with territorial 
expansion there went institutional growth: and this growth in¬ 
volved in large part the destruction of local liberties. The amal¬ 
gamation of France into a single, veritable kingdom was vastly 
more fatal to local self-government than the anarchy and confu¬ 
sion of feudal times had been. The cities could cope with neigh¬ 
bor lords; and during the period of contest between king and 
barons they could count oftentimes upon assistance from the king: 
his interests, like theirs, lay in the direction of checking baronial 
power. But when the feudal lords were no longer to be feared, 
the towns in their turn felt the jealousy of the king; and against 
his overwhelming power, when once it was established, they 
dared not raise their hands. The ancient provinces, too, had in 
the earlier days found ways of bringing local lords into their 
Estates, in which the right of the burghers to have a voice in the 
government was recognized (sec. 368). But they could no more 
resist the- centralization determined upon by a king triumphant 
over all feudal rivals than the towns could. In the end the pro¬ 
vincial assemblies, where they managed to exist at all in the face 
of the growing power of the Crown, were, like all other indepen¬ 
dent authorities of the later time, sadly curtailed in privilege, 
and at the last almost entirely lost heart and life. 

The States-General. — At one time, indeed, it seemed as 


THE GOVERNMENT OF FRANCE. 


139 


if the nation, in being drawn close about the throne, was to be 
given a life of its own in a national parliament. Philip the Fair 
(1285-1314), bent upon making good his authority against the 
interference of the Pope in certain matters, bethought himself 
of calling representatives of the nation to his support. The 
kings of France had already often taken the advice upon public 
affairs of the baronage or of the clergy, each of which orders had 
a corporate existence and organization of its own, and therefore 
possessed means of influential advising: but Philip called in the 
burghers of the towns also and constituted (1302) that States- 
General ( Etats-Oenhaux ) in which for the first time in French 
history that ‘third estate ’ of the Commons appears which in 
later times was to thrust both clergy and nobles out of power and 
itself rule supreme as ‘the people.’ 

Character of the States-General. — The first States-Gen- 
eral, summoned by Philip the Fair, reminds one not a little of 
the parliament called together in England in 1295 by Edward I. 
(secs. 848, 850). Apparently France was about to have a parlia¬ 
ment such as England’s became, a representative body, speaking, 
and at the end of every important contest bringing to pass, the 
will of the nation. But for France this first promise was not ful¬ 
filled. During three centuries, the fourteenth, fifteenth, and 
sixteenth (1302-1614), it was the pleasure of the French monarch 
to keep alive, at first by frequent, and later by occcasional sum¬ 
mons, this assemblage of the three Estates. This was the period 
during which feudal privileges were giving way before the royal 
prerogative, and it was often convenient to have the formal sanc¬ 
tion of the Estates at the back of acts of sovereignty on the part 
of the Crown. But after the full establishment of the regal power 
the countenance of the Estates was no longer needed, and was 
no longer asked. The States-General never, moreover, even in 
the period of their greatest activity, became a legislative au¬ 
thority. For one thing, they had not the organization proper, 
not to say necessary, for the exercise of power. The three Es¬ 
tates, the Nobility, the Clergy, and the Commons (Tiers Etat), 
deliberated apart from each other as separate bodies; and each 
submitted its own list of grievances and suggestions to the king. 
They acted often in harmony, but never in union; their only 


140 


THE GOVERNMENT OF FRANCE. 


common meeting was the first of each session, when they all 
three assembled in the same hall to hear a formal opening speech 
[rom the throne. They never acquired the right to be consulted 
svith reference to that cardinal affair of politics, taxation; they 
never gained the right to sit independently of royal summons. 
They were encouraged to submit what suggestions they chose to 
the government concerning the administration of the kingdom; 
and, as a matter of fact, their counsels were often heeded by the 
king. But they never got beyond advising: never won the right 
to expect that their advice would' be taken. Their sessions did, 
however, so long as they continued, contribute to keep alive a 
serviceable form of self-government which at least held the nation 
within sight of substantial liberties; and which, above all, secured 
national recognition for that ‘third estate,’ the people, whose 
sturdiest members, the burghers of the towns, were real represen¬ 
tatives of local political life. 

Administrative Development. — Of course along with the 
territorial expansion of the monarchy by annexation, absorption, 
and conquest there went also great administrative developments. 
As the monarchy grew, the instrumentalities of government grew 
along with it: possession and control advanced hand in hand. 

Growth of the Central Administration.—In the earlier 
periods of the Capetian rule a Feudal Court and certain house¬ 
hold officers constituted a sufficient machinery for the central 
administration. There was a Chancellor , who was the king’s 
private secretary and keeper of both the public and the private 
records of the court; a Chamberlain, who was superintendent of 
the household; a Seneschal , who presided in the king’s name 
and stead in the Feudal Court, and who represented the king in 
the direct administration of'justice; a Great Butler, who was 
manager of the royal property and revenues; and a Constable, who 
was commander of the forces. The Feudal Court, composed of 
the chief feudatories of the Crown, exercised the functions of a 
tribunal of justice in suits between tenants in capite, besides the 
functions of a taxing body and of an administrative council. 

The Council of State. — So long as ‘ France ’ was only a 
duchy and the real territory of the Crown no wider than the im- 


THE GOVERNMENT OF FRANCE. 


141 


mediate domain of the Capetian dukes, the weight of administra¬ 
tion fell upon the officers of the household, and the Feudal Court 
was of no continuous importance. But as France grew, the 
household officers declined and the Feudal Court advanced in 
power and importance. As the functions of the Court increased 
and the Court became a directing Council, the Council more and 
more tended to fall apart into committees, into distinct sec¬ 
tions, having each its own particular part of the duties once 
common to the whole body to perform. The earlier Councils 
exercised without distinction functions political, judicial, and 
financial, and their differentiation, though hurried forward by 
inonarchs like Louis IX., was not given definite completeness 
until 1302 (the year of the first States-General) when, by an 
ordinance of Philip the Fair, their political functions were 
assigned to the body which was to remain the Council, their 
judicial functions to a body which was to bear the ancient name 
of parliament (and which we know as the Parliament of Paris), 
their financial functions to a Chamber of Accounts. Alongside 
of the Chamber of Accounts there sprang up a Chamber of 
Subsidies which concerned itself with taxation. Into these 
bodies, whose activity increased from year to year, the old offi¬ 
cials of the household were speedily absorbed, the Great Butler, 
for instance, becoming merely the president of the Chamber of 
Accounts. 

The Parliament of Paris. — The judicial section of the Council 
of State consisted at first like the other sections, like the whole Council 
indeed, of feudatories of the Crown, as well as of administrative experts 
gradually introduced. More and more, however, this chief tribunal tended 
to become exclusively a body of technical officials, of trained jurists and 
experienced lawyers, the law officers and advisers of the Crown. 

Growth of Centralized Local Administration: Louis IX.^ 

This expansion of the central organs of administration meant 
that the royal government was entering more and more exten¬ 
sively into the management of affairs in the provinces, that 
local administration was being centralized. This extension of 
centralized local administration may be said to have begun in 
earnest under Louis IX. Louis IX. did more than any of his 
predecessors to strengthen the grip of the monarchy upon it* 


142 


THE GOVERNMENT OF FRANCE. 


dominions by means of direct instrumentalities of government. 
He was a man able to see justice and to do it, to fear God and yet 
not fear the Church, to conquer men not less by uprightness of 
character than by force of will and of arms; and his character 
established the monarchy in its power. By combined strength 
and even-handedness he bore down all baronial opposition; the 
barons subjected to his will, he sent royal commissioners through¬ 
out the realm to discover where things were going amiss and 
where men needed that the king should interfere; he established 
the right of appeal to his own courts, even from the courts of the 
barons, thus making the Parliament of Paris the centre of the 
judicial system of the country; he forced limitations of power 
upon the feudal courts; he forbade and in part prevented judicial 
combats and private warfare. He drew the administration of the 
law in Prance together into a centralized system by means of 
royal Baillis and Prevdts, whom he subordinated to the Parliament 
of Paris. 


Steps of Centralization. — It is not, of cburse, to be understood 
that Louis’ work was to any considerable extent a work of creation : it was 
not, but rather a work of adaptation, expansion, systematization. The 
system which he perfected had been slowly growing under his predecessors. 
A bailli was, in the Middle Ages, a very common officer, representing 
king or seigneur, as the case might be, administering justice in his name, 
commanding his men-at-arms, managing the finances, caring, indeed, for 
every detail of administration. At first, it is said, “all of judicial, finan¬ 
cial, and military administration was in his hands.” It was an old system 
of royal baillis , set over districts known as bailliages (bailliwicks), that 
Philip Augustus instituted (1190) and Louis IX. extended and regulated, 
keeping an eye to it, the while, that the baillis should be made to feel their 
dependence upon the Crown so constantly that they should per force re¬ 
main officials and not dream of following the example of dukes and 
counts and becoming independent feudal lords on their own accounts. 

Personal Government: Louis XIV. — Such measures naturally 
tended to subordinate all local magnates to the king. By the policy of 
Louis XIV. this tendency was completed : the whole of the nobility of 
France were, so to say, merged in the person and court of the king. 
Louis took care to have it understood that no man who remained upon 
his estate, who did not dance constant attendance upon his majesty, the 
king, at his court, to add to its brilliancy and servility, might expect any¬ 
thing but disfavor and loss. He made of the great landed nobility a court 
nobility, turning men from interest in their tenants and their estates to 


THE GOVERNMENT OF FRANCE. 


143 


interest in court intrigue alone. He drew all men of rank and ambition 
to himself, merged them in himself, and left nothing between the mon¬ 
archy and the masses whereby the terrible impact of the great revolution 
which was to come might be broken. 

The Completed Centralization: the Intendant. — Finally 

came the completed centralization which followed the days of 
Richelieu: the system whose central figure was the Intendant, a 
direct appointee and agent of the king and absolute ruler within 
the province; and whose lesser figures were the sub-delegates of 
the Intendant, rulers in every district and commune. The rule of 
these agents of the Crown almost totally extinguished the separate 
privileges of the elected magistrates of the towns and of the other 
units of local government. In many places, it is true, the people 
were suffered still to elect their magistrates as before; but the 
usurping activities of the Intendant and his subordinates speedily 
left elected magistrates with nothing to do. In other cases elec¬ 
tions ceased; the Crown sold the local offices as life estates to any 
one who would buy them for cash. 

The Province was a military, not a civil, administrative district. 
The Provinces were grouped into Generalities , of which there were in al) 
thirty-two, and it was over a Generality that each Intendant ruled. Ec¬ 
clesiastical administration was served by still another distinct division into 
Dioceses. 

Judicial Centralization. —The local tribunals of justice in 
like manner had their business gradually stolen from them. The 
principle of appeal established by Louis IX. at length worked its 
perfect work. Every case in which any interest cared for from 
Paris (and what interest was not?) was either actually or by pre¬ 
tence involved was ‘ evoked 9 to special courts set up by royal 
commission. No detail was too insignificant to come within the 
usurpations of the king’s government. 

The Royal Council and the Comptroller-General. — The 
Royal Council at Paris regulated, by ‘orders in council,’ every 
interest, great or small, in the whole kingdom. The Comptroller- 
General, acting through the Intendants and their sub-delegates, 
and through the royal tribunals, managed France. Everybody’s 
affairs were submitted to him, and through him to the Royal 
Council; and everybody received suggestions from Paris touching 


144 


THE GOVERNMENT OF FRANCE. 


his affairs. No labor of supervision was too overwhelming for 
the central government to undertake. Interference in local affairs, 
made progressively more and more systematic, more and more 
minute and inquisitive, resulted, of course, in the complete 
strangulation of local government. All vitality ran to the veins 
of the central organism, and, except for the lingering and treas¬ 
ured privileges of the pays d’etats, and for here and there a per¬ 
sistent form of town life, France lay in the pigeon-holes of a 
bureau. Tabula rasa had been made of the historical elements of 
local government. 

The Spirit of the Administration. —This busy supervision of 
local and individual interests was always paternal in intent; and the 
intentions of the central power were never more benevolent than just 
when the Revolution was beginning to draw on apace. “The royal gov¬ 
ernment was generally willing in the latter half of the eighteenth century 
to redress a given case of abuse, but it never felt itself strong enough, or 
had leisure enough, to deal with the general source from which the par¬ 
ticular grievance sprang.” 1 

The Revolution. — This whole fabric of government went 
for a moment to pieces in the storm of the Revolution. But the 
revolutionists, when their stupendous work of destruction had 
been accomplished, were under the same necessity to govern that 
had rested upon the monarch whom they had dethroned and exe¬ 
cuted; and they very soon proved themselves unable to improve 
much upon the old patterns of government. In denial of the in¬ 
defeasible sovereignty of the king, they proclaimed, with huzzahs, 
the absolute sovereignty of the people; but Assembly and Con¬ 
vention could do no more than arrogate all power to themselves, 
as the people’s representatives, and seek to reign in the king’s 
stead thfough the king’s old instrumentalities. They gave voice 
to a new conception, but they could not devise a new frame of 
administration. The result was confusion, Committees, the 
Terror, and — Napoleon. 

The Reconstruction by Napoleon.—The Revolution re¬ 
moved all the foundations of French politics, but scarcely any of 
the foundations of French administration . The interests of the 

1 John Morley, Miscellanies , Vol. II. (last Macmillan edition), essay on 
w Turgot,” p. 138. 


THE GOVERNMENT OF FRANCE. 


145 


royal administration had centred in the general government, 
rather than in its local parts, — in patronage, in the aggregate 
national power and prosperity, in finance. The true interests 
of republican government, on the other hand, centre in thorough 
local development: republican work, properly done, ought to 
tend to broaden and diversify administrative work by diversi¬ 
fying political life and quickening self-directive administrative 
agencies. But this the leaders of the Revolution neither saw nor 
could do; and Napoleon, whom they created, of course made no 
effort to serve republican development. 

Napoleon simply reorganized despotism. In doing so, 
however, he did scarcely more than carry into effect the principal 
purposes of the Constituent Assembly. The legislation of that 
Assembly had sought, not to shatter centralization, but to sim¬ 
plify and systematize it; and it was this purpose that Napoleon 
carried out. For the Convention and Assembly, as representa¬ 
tives of the nation’s sovereignty, he substituted himself; and 
then he proceeded to give to centralization a perfected machinery. 
The Convention and Assembly had endeavored to direct affairs 
through Committees, Commissions, Councils, Directories, — 
through executive boards , in a word. For such instrumentalities 
Napoleon substituted single officers as depositaries of the several 
distinct functions of administration; though he was content to 
associate with these officers advisory councils, whose advice they 
might ask, but should take only on their own individual responsi¬ 
bility. “ ‘To give advice is the province of several, to administer, 
that of individuals,’ says the maxim which he engraved on 
the pediment of the administrative arrangements of France,” to 
remain there to the present day. The Constituent Assembly, 
willing to obliterate the old Provinces of France, with their 
memories of feudal privilege, and the Generalities , with their 
ancient savor of absolutism, had redivided the country, as sym¬ 
metrically as possible, into eighty-nine Departments; and it was 
upon this territorial framework that Napoleon superimposed a 
machinery of Prefects and sub-prefects, modelled, with simplifi¬ 
cations and improvements of method, upon the system of Intend- 
ants and delegates of the old regime. This he accomplished in 


146 


THE GOVERNMENT OF FRANCE. 


jhat celebrated “Constitution of the Year VIII.” which still lies 
almost undisturbed at the foundation of French administration. 
The Revolution had resulted in imparting to centralization what 
it never had had before: namely, assured order and effective 
system. 1 

Advances towards Liberal Institutions. — Nevertheless, 
the Revolution had asserted a new principle of rule, and every 
change of government which has taken place in France since the 
Revolution has pushed her, however violently, towards genuine 
representative institutions and real republicanism. Louis XVIII., 
though he persisted in holding to the divine right of kings and in 
retaining for himself and his ministers an exclusive right of in¬ 
itiative in legislation, assented to the establishment of a parlia¬ 
ment of two houses and conceded to it the responsibility of the 
ministers. Louis Philippe abandoned the delusion of the ‘divine 
right,’ acknowledged the sovereignty of the people, and shared 
with the chambers the right of initiative in legislation. With 
Napoleon III. came reaction and a return to a system like that 
of the first Napoleon; but even Napoleon III. had consented to 
return to the practice of ministerial responsibility before the 
war with Germany swept him from his throne and gave birth to 
the present Republic. 

The Third Republic. —• Sedan having fallen (September 2), 
and the Emperor having been taken prisoner, the imperial gov¬ 
ernment went to pieces, and on Sunday the fourth of September, 
1870, the leaders of uneasy Paris proclaimed the Third Republic, 
Gambetta being their mouthpiece. A provisional government 
was at once set up by the republican leaders, under the name of 
the National Defence. The men who constituted it were fully 
aware that they legally represented nobody but themselves, that 
they had usurped power in the face of a national crisis and were 
acting by sufferance, and it was their purpose to call together a 
national assembly at once, an assembly chosen by universal suf¬ 
frage, in order that the people’s representatives might construct 

1 Since the war between France and Germany in 1870-’l, the Depart- 
ments of France have numbered only eighty-six, the loss of Alsace and Lor¬ 
raine having subtracted three Departments. There is also the territory of 
Belfort. 


THE GOVERNMENT OF FRANCE. 


147 


in more formal fashion a government of their own. Immediate 
preparations were accordingly made for an election. But the 
rapid and fatal progress of the war prevented. Germany pressed 
her victories to the utmost. It was not possible to hold an as¬ 
sembly at all until the end had come and it had become necessary 
to decide terms of submission and peace. 

The National Assembly of 1871-1876. — On the 8th of 
February, 1871, a National Assembly was elected, and on the 
13th of the same month it convened for the transaction of its 
business at Bordeaux. It turned out not to be a republican body. 
Of its seven hundred and sixty-eight members a majority were 
found to be in favor of a monarchical form of government. Had 
that majority been united, it could have undone the work of Gam- 
betta and his colleagues and have set a prince once more upon 
the throne of France. But it could not unite. Some, the ‘Le¬ 
gitimists/ wished to see the old house of Bourbon restored; 
others were partisans of the house of Orleans; a few were Im¬ 
perialists and wanted the empire of the Bonapartes set up again. 
The first business of the Assembly was easily disposed of, hu¬ 
miliating though it was. Peace was concluded with Germany 
upon her own terms, only Belfort being saved by the diplomacy 
of Thiers. The matter of real difficulty was the establishment 
and maintenance of a government. For the time being, and until 
something better and more permanent could be agreed upon, the 
name and the forms of the Republic were kept. M. Grevy, a 
moderate Republican, was made President of the Assembly; M. 
Thiers, a moderate Orleanist, was chosen ‘Chief of the Executive 
Power ? of the Republic (a title presently changed to President); 
and the Assembly itself undertook to direct affairs, through the 
President as its responsible agent. 

A Balance of Parties. — For five years the Assembly main¬ 
tained its authority and hold upon affairs. It had been given no 
formal commission at the elections what it should do. It had 
been clearly enough understood, of course, that it was first of all 
to come to terms of peace with Germany; but no one knew what 
the voters had expected it would do after that. It had neither 
been commissioned to form a government nor to conduct one, and 
yet it certainly had not been forbidden to do either. The Repub' 


148 


THE GOVERNMENT OF FRANCE. 


licans, finding themselves in a minority, urged that the Assembly 
had no authority to make a permanent constitution, and demanded 
that it should be dissolved and the people asked to choose a new 
assembly explicitly authorized to frame a government. The 
monarchical majority, however, feared that they should not have 
such another chance as the present to frame a government to their 
own liking, and claimed that as a National Assembly elected 
Without instructions the existing body had practically received 
sovereign powers from the electors and might do as it pleased, 
watching, as prudent men should, the while, the temper of the 
country. The real difficulty was to hit upon a practicable pro¬ 
gramme, agreeable to all factions of the monarchists. The 
interests of the factions proved in fact irreconcilable and it soon 
became evident to conservative and observant men of every opin¬ 
ion that the Kepublic must be left standing. Thiers declared 
very frankly that he would have preferred a constitutional mon¬ 
archy; but he believed a republic to be the real preference of the 
country, and he knew that to attempt the restoration of any one 
of the royal houses would be in the highest degree dangerous and 
revolutionary under the circumstances. “The Eepublic exists,” 
he said; “it is the legal government of the country; to wish for 
anything else would be a revolution.” The monarchists had at 
all events lost their opportunity by waiting; opinion ran steadily 
against them, and it was presently too late. 

The Framing of the Constitution. — The more statesman¬ 
like and practical men amongst them saw at last very clearly that 
they must frame a republican government or none at all; but they 
determined to do as little as possible towards making the consti¬ 
tution they should frame definitive and difficult of alteration. 
They would make the forms of the new government such that it 
could at any rate be readily changed, and that without radical 
amendment, into a constitutional monarchy. They gave it, ac¬ 
cordingly, as simple and rudimentary a frame as possible, leav¬ 
ing almost every detail, and even some of the main arrangements 
of its administration, to be settled by ordinary legislation; and 
they took care to make constitutional change as easy and informal 
a matter as might be without risking immediate instability. For 
four years they experimented with the government they had; 


/ 

THE GOVERNMENT OF FRANCE. 14i 

defining the powers of the President and their own relations tc 
him more than once, as if tentatively, and so as it were testing 
and shaping the arrangements to which they should ultimately 
give permanency. About a month after its convening the As¬ 
sembly removed from Bordeaux to Versailles. While the Com¬ 
mune ruled Paris the leaders of the Assembly could of course 
think of nothing but the measures necessary to establish order 
and the authority of the government. When order had been re¬ 
stored, it was still necessary to handle the finances and arrange 
many disordered matters of administration. What with the diffi¬ 
culties of governing the country and the even greater difficulty of 
quieting its own factions, it proved impracticable for the Assem¬ 
bly to enter upon the work of constitution-snaking before 1873. 
The work was not completed before the closing months of 1875. 

Meanwhile (August 31, 1871), by the same act which conferred 
upon him his new title of President of the Republic, the Assembly had 
defined its relations to Thiers, constituting him its responsible minister, 
with the right to appoint the other executive officers of the government and 
to address the Assembly upon all matters of public business, and giving 
him a term of office which should last until it should have finished its own 
business. In March, 1873, thinking him too dominant in its counsels, it 
had sought to exclude the President from its debates, except upon extraor¬ 
dinary occasions, and to put a responsible cabinet of ministers between 
itself and the head of the government. Two months later it forced M. 
Thiers to resign and elected Marshal MacMahon to exercise the office ot 
President in his stead, fixing his term at seven years and leaving the scope 
of his authority and of his relations to the legislature to be determined by 
the definitive constitutional laws it was about to frame. It had experi¬ 
mented long enough at governing and at the making and modifying of 
Executives, and was ready, as it no doubt saw the country was, for its 
final task. 

Scope and Character of the Constitutional and Organic 
Laws of 1875. — In framing the laws which were to give shape to 
the new government the Assembly distinguished between those 
which were to be ‘constitutional 7 and subject to change only by 
special processes of amendment, and those which, though ‘or¬ 
ganic, 7 were to be left subject to change by the ordinary processes 
of statutory enactment by the two Houses of the Legislature. 
The ‘constitutional 7 laws, passed February 24th and 25th and J u\y 


150 


THE GOVERNMENT OF FRANCE. 


\ 


16th, 1875, respectively, dealt in the simplest possible manner 
with the larger features of the new government’s structure and 
operation: the election and general powers of the President; the 
division of the National Assembly into two houses, a Senate and 
Chamber of Deputies; the general powers and mutual relations of 
the two Houses, the President’s relation to them, and the general 
rules which should control their assembling and adjournment. 
Two ‘organic’ statutes, bearing date August 2nd and November 
30th, 1875, respectively, provided for the election of Senators and 
Deputies. The only radical amendment of the ‘constitutional ’ 
laws since then effected was made in August, 1884, when almost 
the whole of the constitutional law regarding the composition and 
powers of the Senate was repealed, and replaced by an ‘organic ’ 
law (that is, an ordinary statute) which introduced a number of 
important changes, and left the organization and authority of the 
Senate henceforth open to the freest legislative alteration, likely 
to be checked only by the circumstance that the Senate must itself 
assent to the changes made. The ‘organic’ laws of 1875 with 
regard to elections to the Chamber of Deputies have been several 
times amended. 

The Sovereignty of the Chambers. — There can be no doubt 

that the National Assembly had invested Marshal MacMahon 
with the presidential power, upon the resignation of M. Thiers 
in May, 1873, with a distinct purpose. MacMahon was at once a 
popular and patriotic soldier and a partisan of monarchy. It was 
hoped that he might keep the chief executive place of the nation 
warm for some sovereign to be afterwards agreed upon and en¬ 
throned,— not necessarily by coup d’6tat: perhaps by a mere 
modification of the constitutional laws with regard to the person 
and powers of the head of the state. Sovereignty, nevertheless, 
passed under the new constitution to the new National Assembly, 
the Senate and Chamber of Deputies. The ‘constitutional ’ laws 
of 1875 can be changed at will by the legislature which they called 
into existence: changed by the simple substitution of action in 
joint Assembly for the ordinary separate action in two houses. 
The Senators and Deputies have but to unite in National Assem¬ 
bly to become as sovereign as the Assembly which created them 
(see page 134). They are, besides, the sole judges of their own 


THE GOVERNMENT OP PRANCE. 


151 


constitutional powers. No courts restrain them. France, like 
England, vests in her parliament a complete sovereignty of dis¬ 
cretion as to its own acts. 

The principal difference between the two cases is, that the English 
Parliament may exercise all its powers in the same way, by the ordinary 
procedure of enactment, whether it changes by the act a mere detail of 
the common law or a chief arrangement of the constitution of the realm, 
while the French chambers are put under limitations of procedure in 
respect of every alteration of the fundamental law. 

The constitutional arrangements thus effected have this 
admirable difference from all other previous constitutions France 
has had since the Eevolution: they do not pretend to constitute 
the whole body of her fundamental public law. They exclude 
neither precedent nor growth. In practice even the precedents 
of previous constitutions have been suffered to have a part in sup¬ 
plementing them. So much of former constitutional usage as is 
not incompatible with the laws and character of the Republic is 
regarded as still in force. There has been no absolute break 
with the past, but only a new construction on old foundations. 

The Chamber of Deputies. — It was the hope of the consti¬ 
tution-makers of 1875 that the Senate would have equal weight 
in affairs with the Chamber of Deputies; but that hope has been 
disappointed. Effective power has fallen from the first to the 
popular chamber, and the Senate has been thrust into a secondary 
role. Of the choice of members of the Chamber of Deputies, the 
constitutional laws say no more than that they shall be elected 
by universal suffrage. ‘Organic ’ statute law has organized the 
Chamber on the basis of one deputy to every one hundred thou¬ 
sand inhabitants. Deputies must be at least twenty-five years of 
age, and their term, unless the Chamber be sooner dissolved, is 
four years. The eighty-six Departments into which the country 
is divided are the basis of representation in the Chamber, as in 
the Senate (page 153). To each Department is assigned a certain 
number of deputies, according to its population; every Depart¬ 
ment, however, whatever its population, being entitled to at least 
three representatives. The deputies are elected, not ‘at large 1 
for the whole Department, that is, on a general ticket, but by 
districts, as members of our federal House of Representatives 


152 


THE GOVERNMENT OF FRANCE. 


are chosen in the States. The Arrondissements serve as ‘ con¬ 
gressional districts/ as we should call them, 1 — and this method 
of voting is accordingly known in France as scrutin d’arrondisse¬ 
ment (ballot by arrondissement). 

This was the original arrangement of 1875 ; hut in 1885 the system of 
voting for deputies in each Department on a general ticket, as we vote 
for presidential electors in the States, was introduced, being called scrutin 
de liste (ballot by list). It was adopted at the suggestion of Gambetta, 
who thought that a system of general tickets would give his party a freer 
sweep of popular majorities. In 1889, however, scrutin cT arrondissement 
was reestablished, because scrutin de liste had given too free a sweep to 
the popular majorities of General Boulanger. 

The principal colonies, too, are entitled to representation in 
the Chamber. Algiers sends five deputies ; Cochin-China, Guade¬ 
loupe, Guyana, India, Martinique, Reunion, and Senegal each 
send one. In all, there are six hundred and two deputies. Elec¬ 
tions to the Chamber do not take place at regular intervals and 
on fixed dates named by statute, but must be ordered by decree 
from the President of the Republic in each case. The law directs, 
however, that the President must order an election within sixty 
days, or, in case of a dissolution, within two months after the 
expiration of a term of the Chamber; and that the new Chamber 
must come together within the ten days following the election. 
At least twenty days must separate decree and day of election. 

Election by Majority. —The law governing the election of 
Deputies provides against choice by plurality on the first ballot; and the 
result is unfortunate. If there are more than two candidates in an elec¬ 
toral district (an arrondissement ), an election on the first ballot is possi¬ 
ble only if one of the candidates receives an absolute majority of all the 
votes cast not only, but also at least one-fourth as many votes as there 
are registered voters in the district. If no one receives such a majority, 
another vote must be taken two weeks later, and at this a plurality is 
sufficient to elect. The result is, that the multiplication of parties, or 
rather the multiplication of groups and factions within the larger party 
lines, from which France naturally suffers overmuch, is directly encour¬ 
aged. Rival groups are tempted to show their strength on the first ballot 

1 Arrondissements having a population of more than one hundred thou¬ 
sand people are divided into districts, called circonscriptions — one for each 
hundred thousand people or fraction thereof. 


THE GOVERNMENT OF FRANCE. 


153 


in an election, for the purpose of winning a place or exchanging favor 
for favor in the second. They lose nothing by failing in the first; they 
may gain concessions or he more regarded another time by showing a 
little strength ; and rivalry is encouraged, instead of consolidation. France 
cannot afford to foster factions. 

The Senate. — By an act of the National Assembly passed 
August 14th, 1884, almost the whole of the constitutional law of 
February 24th, 1875, relating to the organization of the Senate 
and to the qualifications and election of senators was stripped of 
its c constitutional ’ character and became an ordinary statute. 
Four months later it was replaced by the act of December 9th, 
1884. In all that respects its organization and in much that re¬ 
spects its powers the Senate has become a merely statutory body. 
So far as the ‘ constitutional ’ laws are concerned, it might be con¬ 
stituted by executive appointment or by lot. By statute it has 
been made to consist of three hundred members chosen by 1 elec¬ 
toral colleges ’ specially constituted for the purpose in the several 
Departments and colonies, and the term of senatorship has been 
fixed at nine years. 1 Forty years has been declared the minimum 
age for senators. The electoral college for the choice of senators 
is composed in each Department of the deputies from the Depart¬ 
ment, the members of the ( General Council ’ of the Department 
(page 169), and the members of the Councils of its several Arrorn 
dissements (page 171), together with delegates chosen in each 
Commune by the Communal Council, varying in number according 
to the numbers of the Communal Council. One-third of the 
membership of the Senate is renewed every three years. In legal 
powers the Senate is in all respects upon a footing of equality 
with the Chamber of Deputies, except that money bills must 
originate with the Chamber; and though it has in practice been 
conceded that the Senate may amend them, it has been doubted 
whether it can of strict legal right add to money bills. In 
political power, of course, the Chamber overshadows and domi¬ 
nates the Senate. 

i Until 1884 the law provided that seventy-five of the senatorial seats 
were to be filled by the choice of the Senate itself, and held for life. By 
virtue of the constitutional change effected in 1884, all vacancies occurring 
in these life-memberships are now filled by election in the Departments, as 
other seats are, and for the usual term of nine years. 


154 


THE GOVERNMENT OF FRANCE. 


Legislation determines from time to time how many senators shah 
be elected by each Department. According to the present distribution 
ten are returned by the city of Paris, which itself constitutes most of the 
Department of the Seine. Other Departments vary in their representation 
from two to eight. ‘ ‘ The following elect one senator each : the Territory 
of Belfort, the three Departments of Algeria, the four colonies, Marti¬ 
nique, Guadeloupe, Reunion, French Indies.” (Law of Dec. 9, 1884.) 

In Case of Usurpation. — In case the Chambers should be ille¬ 
gally dissolved or hindered from assembling, the General Councils of the 
Departments are to convene without delay in their respective places of 
meeting and take the necessary steps for preserving order and quiet. 
Each Council is to choose two delegates to join delegates from the other 
Councils in assembling at the place whither the members of the legal gov¬ 
ernment and the regular representatives of the people who have escaped 
the tyranny have betaken themselves. The extraordinary assembly thus 
brought together is authorized to constitute itself for business when half 
the Departments shall be represented; and it may take any steps that 
may be necessary to maintain order, administer affairs, and establish the 
independence of the regular Chambers. It is dissolved, ipso facto , so soon 
as the regular Chambers can come together. If that be not possible, it is 
to order a general election, within one month after its own assembling. 


The National Assembly : its Functions. —The Senate and 
Chamber of Deputies meet together in joint session as a National 
Assembly for two purposes: the revision of the Constitution and 
the election of the President of the Republic. Since November, 
1879, the Houses have met for the performance of their ordinary 
legislative functions in Paris; as a National Assembly they meet 
in Versailles, apart from the exciting influences of the great capi¬ 
tal,- which has led so many assemblies captive. Whether met for 
the election of the President or for the revision of the Constitu¬ 
tion, the National Assembly must do the single thing which it 
has convened to do and then at once adjourn. For the election 
of the President there are clearly determined times and occa¬ 
sions : whenever the office of President falls vacant, whether by 
the death or resignation of the President or by the expiration of 
his term. 

Revision of Constitution. — A revision of the Consti¬ 
tution may take place whenever the two Houses are agreed that 
revision is necessary. It has, thus far, been customary for the 
Houses to consider separately beforehand not only the propriety 


THE GOVERNMENT OF FRANCE. 


155 


of a revision, —that standing constitutional rules require, — but 
also the particular points at which revision is necessary and 
the lines on which it should proceed; and to know each other’s 
minds on these important heads before agreeing to a National 
Assembly. Alike for the election of a President and for the 
adoption of constitutional amendments an absolute majority vote 
of the united Chambers suffices. 

It might easily happen that the majority in one of the Houses 
would be outvoted on joint ballot in National Assembly. If such were 
likely to be the case, that majority could hardly be expected to con¬ 
sent readily to a joint session. France has, not two, but many national 
parties, and it is not always possible to effect the same combination of 
factions in support of a measure in both the Houses. Cases must fre¬ 
quently arise in which a joint vote of the Houses upon a particular measure 
would carry with it defeat to the policy preferred in one of them. And 
yet there is no legal obstacle to prevent the majority in a joint session 
taking up and deciding questions not agreed upon beforehand. The only 
guarantee is good faith. 

The National Assembly is the most completely sovereign 
body known to the Constitution, there being but one thing it 
cannot do under existing law: it cannot sit as long as it pleases. 
Its sessions must not exceed in length the duration of an ordi¬ 
nary legislative session (five months). It is, indeed, forbidden, 
besides, to consider the repeal of republican government; but it 
could repeal the law which forbids it. 

The officers of the Senate act as officers of the National Assembly. 
They consist of a President, four Vice-Presidents, six Secretaries, and 
three Quaestors, elected for one year. The Chamber of Deputies has the 
same offices, with the addition of two more secretaryships. 

The President of the Republic. —* The president, elected by 
the joint ballot of the Chambers, is titular head of the Executive 
of France. His term of office is seven years. He has the power 
of appointing and removing all officers of the public service. He 
has no veto on legislation, but he is authorized to demand a re¬ 
consideration of any measure by the Houses. He can adjourn the 
Chambers at any time (though not more than twice during the 
same session) for any period not exceeding one month; he can 
close a regular session of the Houses at his discretion after it has 
continued five months, and an extra session when he pleases; and 


156 


THE GOVERNMENT OF FRANCE. 


he can, with the consent of the Senate, dissolve the Chamber of 
Deputies, even before the expiration of the five months of its 
regular session. A dissolution of the Chamber of Deputies 
puts an end also to the sessions, though not to the life, of the 
Senate ; for it cannot act, except as a court, without the Chamber. 
In the event of a dissolution, as has been said, the President 
must order a new election to be held within two months there¬ 
after, and the Houses must convene within ten days after the 
election. “ The President is responsible in case of high treason 
only,” says the constitutional law of February 25th, 1875; and, 
in case of high treason the Chamber must impeach, the Senate 
try, him. As a matter of fact, however, four Presidents of the 
Republic have been forced or have chosen to resign. 

The only limitation put by law upon the choice of the National 
Assembly in electing a President of the Republic is, that no one 
shall be chosen President who is a member of any family 
which has occupied the throne of France. Members of these 
families are also excluded from seats in either the Chamber or the 
Senate. 

Influence of President and Senate. — The President and 
Senate, it will be seen, are given a really very great power of 
control over the Chamber of Deputies. It is within the choice of 
the President to moderate the excesses of the Chamber by return¬ 
ing bills to it for reconsideration, 1 or by adjourning it during a 
period of too great excitement; and it is within the choice of the 
President and Senate acting together to appeal from its decisions 
to the constituencies by a dissolution. The Senate, moreover, 
has once and again been given so many members of real weight 
of character and distinction of career that it would seem to have 
been in a position to act in restraint of the Chamber with firmness 
and success. But, though the National Assembly which elected 
Thiers and MacMahon and put together the framework of the 
constitution may have intended the new government to be in 
some real sense a government by the President, it has in fact 
never shown the President in any degree a master in affairs since 
the days of MacMahon himself. MacMahon exercised the power 

1 The President has no veto power and while the Chamber must recon¬ 
sider bills thus returned to it, it may at once repass them without change. 


THE GOVERNMENT OF FRANCE. 


151 


of dissolution, with the approval of the Senate; hut the change 
of Deputies only taught him the real character of the govern¬ 
ment, as a government subject to the will of the Chamber. Year 
by year the subordinate position of the Senate and the irregular 
but always irresistible power of the Chamber have become more 
and more obvious. 

The Cabinet and the Council of Ministers. — A Cabinet of 
ministers constitutes a link between the President and the Cham¬ 
bers : and the political functions of this Cabinet are amongst the 
central features of government in France. Both the Cabinet and 
the Council consist of the same persons; but the Cabinet is a 
political body exclusively and is presided over by the Premier, 
while the Council has administrative functions and is presided 
over by the President. The distinction illustrates pointedly the 
double capacity of the ministers. 

The Ministries.—There are now fourteen ministers: the 
Minister of Justice , filling the office filled before the Devolution 
by the Chancellor; the Minister of Finance , who has taken the 
place of the Comptroller-General of ante-revolutionary days 
(page 143); the Minister of War, who acts as head of the adminis¬ 
trative department created in the time of Mazarin (1644) ; the 
Minister of Marine; the Minister of Colonies ; the Minister 
of Foreign Affairs (1644); the Minister of the Interior , an office 
created by the Constituent Assembly in 1791, by a consolidation 
of the pre-revolutionary offices of Comptroller-General and Minis¬ 
ter of the Royal Household, except so far as the functions of 
the Comptroller-General were financial and bestowed upon the 
Minister of Finance; the Minister of Public Instruction (1848) 
and the Fine Arts; the Minister of Public Works and Transporta¬ 
tion; the Minister of Agriculture (an office created in 1812, but 
afterwards abolished, to be revived in 1828-30); the Minister 
of Trade and Industry; the Minister of Labor; the Minister of 
Supplies, and the Minister of Munitions. 

The Cabinet. — As a Cabinet, the ministers represent the 
Chambers. They are commonly chosen from amongst the mem¬ 
bers of the Houses ; but, whether members or not, they have, as 
ministers, the right to attend all sessions of the Chambers and to 


158 


THE GOVERNMENT OE ERANCE. 


take a specially privileged part in debate. 1 The same right ex¬ 
tends also to the Under-secretaries, who are, consequently, usually 
members of the Chambers. 

The Council of Ministers. — As an administrative Council 
the ministers are, in official rank at least, subordinate to the 
President, who is the Chief Executive. The Council sits in his 
presence and under his presidency. Its duty is to exercise a 
general oversight of the administration of the laws, with a view 
to giving unity of direction to affairs of state. In case of the 
death, resignation, or incapacitation of the President of the Re¬ 
public, the Council is to act in his stead until the National As¬ 
sembly can meet and elect his successor. Its members are ex 
officio members of the Council of State, the highest judicial tri¬ 
bunal of the Republic for the determination of administrative 
cases (page 174). 

Relation of the Ministers to the President. — The Council 
of Ministers is a body recognized by law, the Cabinet is not: it 
is only the ministers in consultation concerning matters affecting 
their political responsibility: it is, aside from such meetings for 
consultation, only a name representing their union in responsi¬ 
bility. But the two names, Council and Cabinet, furnish con¬ 
venient means for making plain the various relations of the 
ministers to the President. As a Council they are, in a sense, 
his creation ; as a Cabinet they are, in a sense, his masters. The 
Executive Departments or Ministries over which they preside 
are the creation, not of the Constitution or of statutes, but of the 
President’s decree. No decree of the President is valid, however, 
unless countersigned by the minister whose department is affected. 
Any such decree must, too, almost necessarily affect the budget, 
and must in that way come within the control of the ministers 
and the Chambers. The ministers are the President’s appointees; 
but he must appoint ministers who are in agreement with the 
majority in the Chambers, and they are responsible to the Cham¬ 
bers alone for their conduct in office. The President is the head 
of the administration; but his salary is dependent upon the 

1 A minister may speak at any time in the Chambers; not even the 
cloture (previous question) can exclude him. In 1888 the Minister of War 
was without a seat in the Chamber. 


THE GOVERNMENT OF FRANCE. 


159 


annual budget which the Minister of Finance presents to the 
Chambers: and the items of the budget are matter of agreement 
between the ministers and the Chambers. 

All these ‘ buts ’ are so many fingers pointing to the power of 
the Cabinet over the President. The Ministers are in fact not his 
representatives, but representatives of the Chambers. In this 
capacity they control not the policy only, but also the patronage 
of the government. Naturally the President’s appointments, 
needing, as they do in every case, the countersignature of a 
minister, are in general the appointments of the ministers; and 
their appointments are too often bestowed according to their in¬ 
terest in the Chambers, — are too often used, in short, to be cast 
as bait for votes. 

The Patronage of Office, indeed, threatens to become 
even more of a menace to good government in France than it has 
been to good government in our own country under the federal 
system of appointment. The number of offices in the gift of the 
ministers in France is vastly greater than the number within the 
gift of the President of the United States; and the ministers’ 
need to please the Chambers by favors of any and all kinds is in¬ 
comparably greater than our President’s need to please Congress, 
since they are dependent upon the good-will of the Chambers for 
their tenure of office, while he is not dependent on Congress for his. 

There have never yet been in France, however, any such whole¬ 
sale removals from office upon the going out of one administra¬ 
tion and the coming in of another as we have seen again and 
again in this country; because there has really been no radical 
change of administration in France since the days of MacMahon. 
In this country, as in England, there are two great national parties, 
and the government is now in the hands of one and again in the 
hands of the other. But in France a change of cabinet means 
nothing more than a change from the leadership of*one group to 
the leadership of another. 

For some years after the establishment of the present form of 
government, the only real party opposed to the Republicans was 
made up of persons known or suspected to be hostile to the very 
form of government under which the country was living. The 
people never gave it a majority in the Chamber and were never 


160 


THE GOVERNMENT OF FRANCE. 


willing to intrust it with office. With the general acceptance of 
the Republic this monarchical party has disappeared; support of 
the Republic has become unanimous. No well-defined issues 
have divided the people or their representatives into two great 
political parties; at present eight parties are represented in the 
Chamber of Deputies, ranging in number after the last election 
from 136 to 26, with 18 Independents. Since no party has a 
majority, a ministry must depend upon a bloc , or union of parties. 
There is thus no strong bond of support behind any ministry, and 
while ministries do not change with the disconcerting frequency 
of the earlier years of the Republic, their tenure is still far too in¬ 
secure and short lived. Generally a new cabinet is composed in 
part of men who held office also in the cabinet just thrown out. 
It is a change only of chief figures. And so wholesale removals 
from office do not take place. 

Ministerial Responsibility.—The responsibility of the 
ministers to the Chambers is of law, and not simply of custom 
as in England. Their tenure of office is dependent upon the 
favor of the Houses. It would doubtless be so without law, for 
no policy of theirs could succeed without legislative approval and 
support, and it is French precedent as well as English for minis¬ 
ters to resign when defeated. They resign because they will not 
carry out measures of which they disapprove. In theory their 
responsibility is to both Houses; but, as a matter of fact, it is 
almost wholly to the Chamber of Deputies. The votes of the 
Senate alone seldom make or unmake Cabinets 1 ; that has come 
to be recognized as the prerogative of the popular Chamber, 
which is more directly representative of the nation. 

Questions and Interpellations. — The ministers may be 
held closely to their responsibility at every turn of their policy 
by means of various simple and effective forms of inquiry on the 
part of the (Chambers. First of all is the direct question. Any 
member of either House may, after due notice given to the min¬ 
ister concerned, ask any question as to affairs of state; and an 
answer is demanded, by custom at least, to every question which 

1 On March 18, 1913 Briand proposed a vote of confidence in the Senate 
on the question of proportional representation, and when it was not given, 
the ministry resigned. 


THE GOVERNMENT OF FRANCE. 


161 


can be answered publicly without detriment to the public interest. 
Next to the direct question, which is a matter between the indi¬ 
vidual questioner and the minister questioned, comes that broader 
form of challenging the policy of the Cabinet, known in France 
as the ‘ Interpellation The simple questioner must first get the 
consent of the minister to hear his question; an interpellation , on 
the contrary, can be brought on without awaiting the acquiescence 
of the minister. It is a special and formal challenge of the 
policy or action of the Cabinet on some matter of the day, and is 
commonly the occasion of a general debate. It usually results in 
a vote expressive of confidence or want of confidence in the min¬ 
isters, as the case may be. It is the question exalted into a 
subject of formal discussion: it is the weightiest form of interro¬ 
gating ministers : it makes them and all that they have done the 
objects of set attack and defence. A third and still more formal 
method of bringing administrative acts under the scrutiny of the 
Chambers consists in the appointment of a Committee of Investi¬ 
gation. 

The power of interpellation lias been so indiscriminately and unwisely 
used in France as seriously to discredit her system of cabinet government. 
Interpellation is unhesitatingly used to take the ministers by surprise, 
Deputies lie in wait to take them at a disadvantage. They are ‘ inter¬ 
pellated,’ moreover, most often, not upon questions of first-rate impor¬ 
tance or in any way representative of their policy, but upon trivial matters 
of the moment. A sudden impulse upon a minor question of administra¬ 
tion often determines the vote, and a cabinet goes out, it may be, as if 
by a trick, — not because its policy has been rejected or discredited, but 
because a chance and temporary majority has been got together against it. 
Yet the French regard the interpellation, despite its abuses, as the essence 
of constitutional government and an indispensable element in securing 
ministerial responsibility. The Chambers have sought within recent years 
to lessen the evils of interpellation by restricting the opportunities for its 
use. Under the present rules of both the Senate and the Chamber inter¬ 
pellations can be made only on one day of the week. Demands for inter¬ 
pellations are so numerous that few can be made in the time allotted, and 
as each takes its turn in order, it has happened that interpellations have 
been reached as long as a year and a half after they were made. The 
Chamber is always mistress of its own order of the day and interpellations 
regarding important matters may be heard at once or may be specially 
set for an early day The number of interpellations is still so great as to 
impose a terrible tax upon the time of both ministers and Chambers. 


162 


THE GOVERNMENT OF FRANCE. 


Control during the War. —The Senate and the Chamber have 
exercised a wide degree of control over the government, not only with 
respect to questions of internal affairs but also with respect to its diplo¬ 
matic policy and the general direction of military affairs. During 1915 
and the early months of 1916, important groups in the Chamber demanded 
that interpellations upon diplomatic and military affairs should be dis¬ 
cussed in secret session, but the government opposed this on the ground of 
the serious consequences that might result from a discussion of these 
matters, even in a secret session. The right of the Senate and Chamber 
to control was not questioned, but the government thought it could be done 
better by the great parliamentary committees on the army, finance, and 
foreign affairs. Finally the government was compelled to yield and on 
June 14-22, 1916, secret sessions were held for the first time in the history 
of the Third Republic. Though a vote of confidence in the Briand 
ministry was given, the Chamber resolved to appoint a special committee, 
which, with the concurrence of the government, should exercise effective 
control. But the Chamber was finally compelled to abandon the plan of a 
special committee of control and on July 26, 1916, it delegated to the great 
standing committees the powers necessary to exercise effective control. 1 

The Course of Legislation. — All propositions alike, whether 
made by ministers or by private members, have to go to a special 
committee for consideration before reaching a debate and vote by 
the whole House ; but the propositions of private members must, 
in the Senate, pass another test before they reach even a special 
committee. They must go first to the ‘ Monthly Committee on 
Parliamentary Initiative/ and it is only after hearing the report 
of that Committee upon bills submitted to it that the Senate 
determines whether particular measures shall be taken under 
further consideration and advanced to the special-committee stage. 
In the Chamber of Deputies every proposition of a private mem¬ 
ber goes to the president of the Chamber who refers it to the 
permanent committee within whose province it falls. A vote 
of emergency taken upon the introduction of a measure can, how¬ 
ever, rescue a ministerial bill from all committee handling, and 
a private member’s bill from the delays of the Initiative Com¬ 
mittee. 

The Committees . 2 — The committee organization of the 
House is worthy of special remark. Every month during the 
session, the members of the Senate are divided by lot into nine 

1 Duguit, Manuel, pp. 452 ff. 2 Ibid., pp. 431 ff. 


THE GOVERNMENT OF FRANCE. 


163 


bureaux . The business of these bureaux is not to consider bills 
but to elect the committees to which bills are referred. 

In the Chamber of Deputies since 1915, at the opening of a 
new session eleven bureaux are chosen by lot and they proceed 
at once to examine the certificates of election; other bureaux 
are chosen in the event the Chamber decides to establish a per¬ 
manent or special committee, elected by the bureaux , in addition 
to the great standing committees. 

Until 1902 the committees of both Senate and Chamber of 
Deputies were special and temporary: special in that they 
were appointed to consider one or more definite points and they 
could not consider anything else ; temporary, that is, they ceased 
to exist so soon as the matter with which they were intrusted 
was disposed of. Since 1902 the Chamber has adopted the 
system of permanent or standing committees, chosen for a year, 
among which all the business is distributed. In 1911 the Senate, 
though holding in principle to the theory of special committees, 
decided to establish a certain number of standing committees. 
The number of these committees in the Chamber is nineteen and 
in the Senate four. In the Senate they are chosen by the 
bureaux , but in the Chamber a method is used which gives pro¬ 
portional representation to the various political groups; the 
bureaux of the different groups report to the president a com¬ 
plete list of their members and, after agreement among them¬ 
selves, the list of candidates which they have determined in 
accordance with the rule of proportion. This list is regarded as 
having received the ratification of the Chamber unless fifty 
deputies have opposed it by a declaration in writing delivered to 
the president. Im the event of opposition the Chamber proceeds 
to a vote by the scrutin de liste. Each committee consists of 
forty-four members and no deputy can serve on more than three 
committees at the same time. 

The very existence of committees and of the matter-of-course 
reference of all measures to their consideration, means that the 
Chamber insists upon examining and sifting all proposals for 
itself, whether they have been introduced by the ministers or not. 
It means, consequently, that the leadership of the ministers is 
thus still further broken and embarrassed. The committees will 


164 


THE GOVERNMENT OF FRANCE. 


always insist upon putting some touch at least of their own 
handiwork upon the bills submitted to them; and even the 
ministers may count upon seeing their proposals pulled about 
and altered. 

The Budget Committee. — All financial matters are con¬ 
sidered by special standing committees chosen for one year j in 
the Chamber of Deputies by a Budget Committee composed of 
forty-four members, and in the Senate by a Finance Committee 
composed of eighteen members ; and these Committees, like other 
standing committees, arrogate to themselves something like abso¬ 
lute domination of the financial policy of the government, with 
the result of robbing financial legislation of order and consistency, 
and of sadly obscuring the responsibility of the ministers. Other 
committees simply consider and report; the Budget Committee 
undertakes often radically to revise, sometimes altogether to 
transform, ministerial proposals, originating when it was meant 
only to control. 

Government by the Chambers. — Ministerial responsibility has 
rapidly degenerated in France into government by the Chamber of Deputies. 
Ministerial responsibility is compatible with ministerial leadership; and 
under a ministry really given leave to direct the course of public policy, the 
Chambers judging and controlling but not directing, that policy might have 
dignity, consistency, and strength. But in France the ministers have, more 
and more as the years of the Republic have multiplied, been made to substi¬ 
tute for originative leadership submissive obedience to the wishes, and even 
to the whims, of the Chamber of Deputies. The extraordinary functions 
which have been arbitrarily assumed by the Budget Committee simply mirror 
the whole political situation in France. 

The Administrative and Judicial Powers of the Executive. 

— It must not be supposed, because the life of a ministry is short 
and its leadership in the houses uncertain, that it wholly lacks 
power while it lasts. It inherits the traditional prerogatives of 
the French Executive, and they are very great. The powers of 
the President are the powers of the ministers. His power to 
execute and administer the laws means, according to the imme¬ 
morial practice in France, that he may freely interpret them to 
meet circumstances and cover cases which the legislature did not 
foresee or provide for. The laws are for the most part them¬ 
selves without detailed provisions. They give the officers of 


THE GOVERNMENT OF FRANCE. 


165 


state who are to execute them a principle by which to go rather 
than a body of minute instructions. He may not disregard the 
plain principles of the law, indeed, but he is not restrained by 
detail; and in shaping administrative arrangements, instructing 
officials, and developing plans to meet the requirements of public 
business the executive authority exercised by the ministers 
through the President’s decrees is in most cases wholly free from 
the trammels of statute. The legality of administrative action, 
moreover, is tested, when challenged, not by the ordinary courts 
of law, in which private rights are determined and guarded, but 
by special administrative tribunals in which the utmost latitude 
of discretion on the part of officers of state is the principle chiefly 
respected and enforced. The Executive inherits a very absolute 
tradition of power. 

The President’s power to ‘ dispose of the armed force ’ of the nation has 
been employed in such a way as almost to amount to a declaration of war, 
in some of the aggressive colonial schemes into which French ministries 
have allowed themselves to be drawn. There goes with the executive 
power of appointment, too, an absolute power of removal from office, and 
all the vast official machinery of a centralized state is under the hands of 
the ministers to use almost as they will. 

Departmental Functions. — The main duties of most of the 
Departments are sufficiently indicated by their names and illus¬ 
trate the range of function assumed by the government in France 
more conspicuously than they illustrate the form and spirit of 
her political institutions. A mirror of the political life of France 
is to be found in the organization of the Ministry of the Interior, 
which is more largely concerned than any other Department with 
the multifarious details of local government. 

Local Government. 

France still preserves the administrative divisions created by 
the Constituent Assembly in December, 1789. Instead of the 
old system of ecclesiastical dioceses, military provinces, and ad¬ 
ministrative ‘ generalities ’ (page 143), with their complexities and 
varieties of political regulation and local privilege, there is a 
system, above all things simple and symmetrical, of Departments 


166 


THE GOVERNMENT OF FRANCE. 


divided into Arrondissements, Arrondissements divided into Can¬ 
tons, and Cantoyis divided into Communes. Much the most signifi¬ 
cant of these divisions is the Department: whether for military, 
judicial, educational, or political administration, it is the impor¬ 
tant, the persistent unit of organization ; arrondissement, canton 
and commune are only divisions of the Department, — not frac¬ 
tions of France, hut only fractions of her Departments. The 
canton, indeed, is little more than an election district; and the 
arrondissement is only a fifth wheel in the administration of 
the Department. The symmetry of local government is perfect 
throughout. Everywhere the central government superintends 
the local elective bodies; and everywhere those bodies enjoy the 
same privileges and are hedged in by the same limitations of 
power. 

The several parts of the system of local government in 
France will thus be seen to rest, not upon any historical ground¬ 
work, creating each a vital whole, with traditions of local self- 
government handed down from an older time of freedom, but upon 
a bureaucratic groundwork of system. France, therefore, in ap¬ 
proaching confirmed democracy and complete self-government, is 
building, not upon a basis of old habit, fixed firmly in the stiff 
soil of want and prejudice, but upon a basis of new habit widely 
separated from old wont, depending upon the shifting soil of new 
developments of character, new aptitudes, new purposes. Her 
new ways run across, not with, the grain of her historical nature. 
Her self-government is a-making instead of resting upon some¬ 
thing already made. 

The Department: the Prefect. — The central figure of 
French administration is the Prefect, the legal successor of the 
Intendant (page 143). He is the agent of the central government 
in the Department. He is the recruiting officer of that district, 
its treasurer, its superintendent of schools, 1 its chief of police,, its 
executive officer in all undertakings of importance, and the ap- 
pointer of most of its subordinate officials. He fills a double 
capacity: he is the agent and appointee of the central govern¬ 
ment, and at the same time the agent of the local legislative 
authorities. He is at once member and overseer of the General 
1 He appoints and disciplines the teachers. 



THE GOVERNMENT OP FRANCE. 


167 


Council of his Department; and he is necessarily its agent, inas¬ 
much as he commands, as representative of the authorities in 
Paris, all the instrumentalities through which its purposes must 
be effected. A minister can veto any act of a Prefect, — for he 
is the representative of any minister who needs his executive aid 
in the Department, — but no minister can override him and act 
by his own direct authority. Until he is dismissed the minister 
must act through him. 

When acting as the agent of the central authorities in carrying 
out the provisions of general statutes or of general administrative 
regulations the Prefect has, of course, no choice hut to obey the 
orders he receives from the ministers in Paris. But when he 
acts in local matters, he may use his own discretion and can be 
brought to book only by judicial process and upon complaint. 
It is of great consequence, therefore, that his powers in the 
held of local government are so many and so important. He 
prepares the budget of the Department not only but also all the 
other business upon which the General Council of the Department 
(pages 168, 169) is expected to act. His initiative determines the 
greater part of what that Council does ; and it can act only through 
him in getting its resolutions carried into effect. His police 
power extends beyond the organization and government of the 
police of the Department to the, at any rate, indirect control of 
the police organization and the police regulations of the Com¬ 
munes, many of which are great cities, with elective officers of 
their own (page 171). Every mayor’s police appointments must 
be confirmed by him, and he alone can remove police officials 
from office in the Communes. 1 Police ’ affairs, in France, more¬ 
over, cover not merely the preservation of order and the enforce¬ 
ment of the law, but also such important matters as those, for 
example, which concern the public health. In respect of some 
matters of local management, too, the Prefect can act by direct 
orders of his own, addressed to the officials of the Communes, as 
if to his own immediate subordinates. He can in his discretion 
suspend the mayor of a Commune from office for a month’s time; 
he can suspend also the session of a communal council (page 173) 
for a like period. 

The Prefect may take part in the proceedings of the General 


168 


THE GOVERNMENT OF FRANCE. 


Council of the Department at any time except when his accounts 
are being considered. 

Such is the legal position of the Prefect. His actual position 
is somewhat different. The politics of the Eepublic, one of 
whose tendencies has been to contribute by degrees to local self- 
government, is making the Prefect more and more largely the 
executive agent of the General Council of his Department. He 
is appointed by the Minister of the Interior and is in law first of 
all and chiefly the representative of the Interior. But the other 
ministers also, as has been said, act through him in many things. 
He frequently owes his appointment to the favorable influence 
of the deputies and senators from his Department with the 
Minister of the Interior, and he is kept, by his personal relations 
with them, close to local influences. He is, consequently, not the 
autocrat he was under Napoleon. 

The General Council of the Department. — The legislative 
body of the Department is the General Council, which is made 
up of representatives chosen, one from each canton, by universal 
suffrage. Except during a session of the Chambers, the Presi¬ 
dent of the Eepublic may at any time dissolve the General Council 
of a Department for cause. The election of representatives to the 
General Council, like the election of deputies, does not take place 
upon days set by statute, but on days set by decree of the Presi¬ 
dent. Councillors are elected for a term of six years, one-half of 
the membership of the Council being renewed every three years. 
In order that members of the General Council may be in fact 
representatives of at least a respectable number of the voters of 
the cantons, the law provides, as in the case of the election of 
Deputies (page 153), that no one shall be elected on a first ballot 
unless voted for on that ballot by an absolute majority in a poll 
of at least one-fourth of the registered voters. Attention having 
been called to the election by the failure of a first ballot, a plu¬ 
rality will suffice to elect on a second. In case of a tie, the older 
candidate is to be declared elected. 

The membership of the Council varies in the several Depart¬ 
ments, according to the number of cantons, from seventeen to 
sixty-seven. 

The Council of State is judge of the validity of elections to its 


THE GOVERNMENT OF FRANCE. 


169 


membership, and a seat may be contested on the initiative 
either of a member of the Council, the Prefect, or a constituent 
of the member whose rights are in question, or a defeated 
candidate. 

There are two regular sessions of the General Council each 
year. The duration of both is limited by law: for the first to 
fifteen days, for the second to one month. Extra sessions of 
eight days may be called by the President of the Republic or by 
the Prefect at the written request of two-thirds of the members. 
If the Council in any case outsit its legal term, it may be dis¬ 
solved by the Prefect; if it overstep its jurisdiction in any matter, 
its acts may be annulled by a decree of the President. Members 
are liable to penalties for non-attendance or neglect of duty. 
They are, however, on the other hand, paid nothing for their 
services. 

At the first regular session of the year the Council considers 
general business; at the second and longer session it discusses 
the budget of the Department, presented by the Prefect, and 
audits the accounts of the year. At either session it may require 
from the Prefect or any other chief of the departmental service 
full oral or, if it choose, written replies to all questions it may 
have to ask with reference to the administration. 

The supervisory and regulative powers of the General Council 
are of considerable importance; but its originating powers are 
of the most restricted kind. It has the right to appropriate 
certain moneys for the expenses of local government, but it has 
not the right to tax for any purpose. The amount and the source 
of the money it is to use are determined by the Chambers in 
Paris. Even such narrowed acts of appropriation as it can pass 
have to be confirmed by presidential decree. Its chief functions 
are directory, not originative. It sees to the renting and main¬ 
tenance of the buildings needed for its own use, for the use of the 
Prefect and his subordinates, for the use of the public schools, 
and for the use of the local courts ; it votes the pay of the police 
( gendarmerie ) of the Department; provides for the cost of print¬ 
ing the election lists ; supervises the administration of the roads, 
railroads, and public works of the Department; oversees the man¬ 
agement of lunatic asylums and the relief of the poor. Most 


170 


THE GOVERNMENT OF FRANCE. 


important of all, it apportions among the several arrondissements 
the direct taxes annually voted by the Chambers. 

The Departmental Commission. —During the intervals 
between its sessions, the General Council is represented in local 
administration by a committee of its own members called the 
Departmental Commission, which it elects to counsel and over¬ 
see the Prefect. The powers of this Commission, however, are 
merely advisory. 

Central Control. — The most noticeable feature of this 
system is the tutelage in which local bodies and the individual 
citizen himself are kept. Fines compel the members of the Gen¬ 
eral Council to do their work, and then every step of that work 
is liable to be revised by the central administration. Irregulari¬ 
ties in the election of a member may be brought to the attention 
of the General Council by the Prefect, as well as by its own 
members or by petition from the constituency affected. If the 
Council overstep the limits of its powers, it is checked by decree 
of the President, and not by such a challenging of its acts in the 
courts by the persons affected as, in English or American prac¬ 
tice, strengthens liberty by making the individual alert to assert 
the law on his own behalf, instead of trusting inertly to the gov¬ 
ernment to keep all things in order. Even expression of opinion 
on the part of the General Council is restricted. It may express 
its views on any matter affecting local or general interests, ‘ if 
only it never express a wish which has a political character/ 

The Arrondissement is the electoral district for the Cham¬ 
ber of Deputies, the members of the Chamber of Deputies being 
elected, as we have seen, not ‘at large/ for the whole Depart¬ 
ment, but by Arrondissements, — not by scrutin de liste , that is, 
but by scrutin d’arrondissement (page 152). It also serves as a 
judicial district and as the province of an arrondissemental 
Council. Its chief administrative officer is a Sub-Prefect. The 
Council of the Arrondissement (conseil dtarrondissement), elected 
from the Cantons, like the General Council of the Department? 
has no more important function than that of subdividing among 
the communes the quota of taxes charged to the Arrondissement 
by the General Council. For the rest, it merely gives advice to 
administrative officers appointed by the ministers in Paris. Its 


THE GOVERNMENT OF FRANCE. 


171 


decisions are largely controlled by the Prefect, and may be an¬ 
nulled by the President of the Kepublic. 

The Canton is the electoral district from which members 
are chosen to the General Council and the Council of the Arron- 
dissement; it marks the jurisdiction of the Justice of the Peace ; 
it is a muster district for the army, and serves as a territorial unit 
of organization for registration and for the departmental care of 
roads ; but it has no administrative organization of its own. It 
is a mere region of convenient size for electoral and like purposes. 

The Commune, unlike the Arrondissement and Canton, is 
as vital an organism as the Department. All towns are Com¬ 
munes ; but there is, of course, a much larger number of rural 
than of town Communes. 

There are 36,229 Communes, most of which have less than 
1500 inhabitants and many of which have less than 500. One 
hundred and seventeen have more than 20,000. Every city of 
France, except Paris and Lyons, is organized as a Commune. 

Paris has its special form of administration, which differs from 
that of all the other cities of France. It has no mayor, but its 
chief administrative officials are two Prefects — one, the Prefect 
of the Department of the Seine, which embraces Paris and the 
immediate environs, who exercises all the functions of a mayor 
except those relating to police; the other, the Prefect of police. 
The Municipal Council is composed of eighty members, four from 
each of the twenty Arrondissements into which the city is 
divided. Each Arrondissement has its own mayor, who is ap¬ 
pointed by the central government. 

The general rule of French administration is centralization, the 
direct representation of the central authority, through appointed 
officers, in every grade of local government, and the ultimate 
dependence of all bodies and officers upon the ministers in Paris. 
In one particular this rule is departed from in the Commune. 
The chief executive officer of the Commune, the mayor, is elected, 
not appointed. He is chosen by the Municipal Council from 
among its own members and is given one or more assistants 
elected in the same way. 

Down to 1874 the mayors of the more populous Communes 
were appointed by the authorities in Paris, the mayors of the 


172 


THE GOVERNMENT OF FRANCE. 


smaller Communes by the Prefects. Between 1831 and 1852 the 
choice of the appointing power was confined to the members of 
the Municipal Councils; between 1852 and 1874 the choice might 
be made outside those bodies. From 1874 to 1882 the smaller 
Communes elected their mayors, indirectly as now. Since 1882 
all mayors have been elected. 

The Communal Magistracy. — The mayor and his assist¬ 
ants do not constitute an executive board: the mayor’s assistants 
are not his colleagues. He is head of the communal government: 
they have their duties assigned to them by him. The mayor is 
responsible to the central administration and its departmental 
representative, the Prefect. Once elected, he becomes the repre¬ 
sentative of the Minister of the Interior. If he will not do the 
things which the laws demand of him in this capacity, the Prefect 
may delegate some one else to do them, or even do them himself 
instead. For cause, both the mayor and his assistants may be 
suspended, by the Prefect for one month, by the Minister of the 
Interior for three months, and all their acts are liable to be set 
aside either by Prefect or Minister. They may even be removed 
by the Executive. 

In case of a removal it is the duty of the Municipal Council to 
fill the vacancies, and to fill them with other men; for removal 
renders the mayor or his assistants ineligible for one year. 

One of the duties of the mayor is to appoint the police force and 
other subordinate officers of the Commune; but in Communes of 
over forty thousand inhabitants the mayor’s composition of the 
police force must be ratified by decree of the President, and in 
other Communes all his appointments must be confirmed by the 
Prefect. 

The Municipal Council. — There is in every Commune a 
Municipal Council (of from ten to thirty-six members, according 
to the size of the Commune) which has, besides its privilege of 
electing the mayor and his assistants, pretty much the same place 
in the government of the Commune that the General Council has 
in the government of the Department; and, in the main, a like 
dependence upon the approval of the central administration. 
Unlike the General Council, the Municipal Council is liable to 
be suspended for one month by the Prefect; like the General 


THE GOVERNMENT OF FRANCE. 


1T3 


Council, it may be dissolved by decree of the President passed 
in the Council of Ministers. It holds four regular sessions each 
year, one of which it devotes to the consideration of the munici¬ 
pal budget, which is presented by the mayor. Its financial ses¬ 
sion may continue six weeks ; none of its other sessions may last 
more than fourteen days. The mayor acts as its president, ex¬ 
cept when his own accounts are under consideration. 

Neither the Municipal Council nor the Council of the Arron- 
dissement is judge of the validity of the elections of its members. 
Contested election cases are heard by the Prefectural Council. 

Until 1831 the Municipal Council was chosen by the Prefect 
from a list of qualified persons made up in the Commune. Be¬ 
tween 1831 and 1848 its members were elected by a restricted 
suffrage. Since 1848 they have been elected by universal suffrage. 

In case of a dissolution of the Municipal Council, its place may 
be taken, for the oversight of current necessary matters, by a 
delegation of from three to seven members appointed by the Presi¬ 
dent of the Republic to act till another election can be had. This 
delegation cannot, however, take upon itself more than the merely 
directory powers of the Council. 

Administrative Courts: the Council of State. —So thorough 
is the differentiation of functions in France that actions at law 
arising out of the conduct of administration are instituted, not in 
the regular law courts connected with the Ministry of Justice, 
but in special administrative courts connected with the Ministry 
of the Interior. French thought, inherited from days of un¬ 
bounded royal prerogative, makes sharp separation between 
Public Law, which concerns the action of the government, and 
Private Law, which concerns the relations of individuals to one 
another. The ordinary courts will determine the rights of an 
individual when they concern the action of another individual; 
but the special courts of the administration must determine the 
questions involved in any challenge of official action, — in any 
challenge of the public power. (Comp, page 166.) The highest 
of these courts is the Council of State, which is composed of the 
ministers, and of various high administrative officers of the per¬ 
manent service. It is the court of last resort on administrative 
questions. It is also charged with the duty of giving advice to 


174 


THE GOVERNMENT OF FRANCE. 


the Chambers or to the government on all questions affecting ad¬ 
ministration that may be referred to it. 

The Prefectural Council. — Below the Council of State 
are the Prefectural Council, a Court of Bevision, a Superior 
Council of Public Instruction, and a Court of Audit. These are 
not subordinate to each other: each is directly subordinate to the 
Council of State. The Prefectural Council is directly associated 
with the Prefect and is the most important of them. It has, 
amongst other weighty functions, that of determining the validity 
of elections to the Council of the Arrondissement and to the 
Municipal Council. For the rest, it has jurisdiction over all ad¬ 
ministrative questions, and over all conflicts between administra¬ 
tive authority and private rights. Its processes of trial and 
adjudication are briefer and less expensive than those of the 
ordinary law courts. In almost all cases an appeal lies to the 
Council of State. 

The Prefect is the legal representative of' the government in cases 
brought before the Prefectural Council; but that court is not at all under 
his dominance. It is composed of permanent judges, one of whom, at 
least, is usually of long administrative experience. Its members are 
appointed, and, for cause, are removable, by the central administration. 

The Administration of Justice. 

Ordinary Courts of Justice. — The supreme court of France 
is the Cassation Court (the Court, that is, of reversals or appeals) 
which sits at Paris. Next below it in rank are twenty-six Courts 
of Appeal, the jurisdiction of each of which extends over several 
Departments. These hear cases brought up from the courts of 
first instance which sit in the capital towns of the arrondisse- 
ments. These last consider cases from the Justices of the Peace, 
who hold court for the adjudication of small cases in the cantons. 
By decree of the President, passed in the Council of Ministers, 
the Senate may be constituted a special court for the considera¬ 
tion of questions seeming to involve the safety of the state; and 
such questions may be removed by the same authority from the 
ordinary courts. 

The appointment of all judges rests with the President, or, 
rather, with the Minister of Justicej and the tenure of the 


THE GOVERNMENT OF FRANCE. 


175 


judicial office, except in the case of Justices of the Peace, is 
during good behavior. In the case of Justices of the Peace, 
the President has power to remove. 

Jury Courts. — In Prance, the ordinary civil courts are 
without juries; the judges decide all questions of fact as well 
as all questions of law. There are, however, special jury courts 
(cours d’assises) constituted four times a year in each Department 
for the trial of crimes, and of political and press offences; and 
in these the jury is sole judge of the guilt or innocence of the 
accused ; the judges determine the punishment. 

Tribunal of Conflicts.- — Between the two sets of courts, 
the administrative and the ordinary, there stands a Tribunal of 
Conflicts, whose province it is to determine to which jurisdiction, 
the administrative or the ordinary, any case belongs whose proper 
destination, or forum, is in dispute. This Tribunal consists of the 
Minister of Justice as president, of three State Councillors 
chosen by their colleagues, and of three members of the Cassation 
Court selected, in like manner, by their fellow-judges, besides 
two members chosen by those already mentioned. 


Some Representative Authorities. 

Aucoc, Conferences sur l’administration et le droit administratif, 3d ed., 
Paris, 1885. 

Bastard D’Estang, Les Parlements de France. 

Beaulieu , Leroy, Administration locale en France et en Angleterre. 

Berthelemy , H., Traite 616mentaire de droit administratif, 8th ed., Paris, 
1916. 

Block , Dictionnaire de l’administration fran 9 aise, Paris, 1887, and subse¬ 
quent annual supplements. 

Bodley , J. E. C., France, 2 vols., London and N. Y., 1898. 

Borgeaud, Charles, Adoption and Amendment of Constitutions in Europe 
and America. Trans, from the French by C. D. Hazen and J. M. 
Vincent, N. Y., 1895. 

Boutmy, Smile, Studies in Constitutional Law: France — England — 
United States. Trans, from the French by E. M. Dicey, London, 
1891. 

Boze'rian , Etude sur la revision de la constitution. 

Bracq , J. C., France under the Republic, N. Y., 1910, 

Brissaud, J., History of French Private Law, Boston, 1912. 


176 


THE GOVERNMENT OF FRANCE. 


Burgess, J. W., Political Science and Constitutional Law, 2 vols., Boston, 
1891. 

Che'ruel, Dictionnaire historique des Institutions, Mceurs, et Coutumes 
de la France, 2 vols., 6th ed., Paris, 1884. 

Cubertin , Pierre de, The Evolution of France, under the Third Republic, 
N. Y., 1897. 

Currier , C. F. A., Constitutional and Organic Laws of France, 1875-’89, 
Philadelphia (Am. Acad. Pol. Sci.), 1893. 

Demombynes , Les Constitutions Europeennes, 2 vols., Paris, 1883. Vol. II., 
p. 1 et seq. 

Dickinson , Reginald, Summary of the Constitution and Procedure of 
Foreign Parliaments, 2d ed. 

Ducrocq, Cours de droit administrate, 2 vols., Paris, 1881. 

Duguit, L., Manuel de droit constitutionnel, 3d ed., Paris, 1918, and 
Traite de droit constitutionnel. Paris, 1911. 

Dupriez , L., Les Ministres dans les principaux Pays d’Europe et d’Ame- 
rique, 2 vols., Paris, 1892. 

Edwards, M. Betham, France To-Day, 2 vols., London, 1892-’94. 

Esmein, A., Elements du droit constitutionnel, 6th ed., Paris, 1914. 

Ferron, H. de, Institutions municipales et provinciales compares, Paris, 
1884. 

Gazzi, L., LTnterpellation a l’assemblee nationale. Marseilles, 1909. 

Goodnow, Frank J., Comparative Administrative Law, 2 vols., N. Y., 
1893. 

Haas, C. P. M., Administration de la France, 4 vols., 2d ed., Paris, 1861. 

Hanotaux, Gabriel, Contemporary France, 4 vols., N. Y., 1903-’09. 

Jeze, G., Les principes gen6raux du droit administrate, Paris, 1904. 

Kitchin, G. W., History of France, 3 vols., Oxford, 1881-’85. 

Laferriere, E., Traits de la Juridiction administrative et des recours con- 
tentieux, 2 vols., Paris, 1887. 

Lebon, Andr6, Franzosisches Verfassungsrecht, Tubingen, 1909 ; Modern 
France ( Story of the Nations Series), London and N. Y., 1896 ; and 
(with P. Pelet ) France As It Is, London, 1888. 

Lowell, A. Lawrence, Governments and Parties in Continental Europe, 
2 vols., Boston, 1896. 

Munro, W. B., The Government of European Cities, N. Y., 1909. 

Naquet, A., The French Electoral System, N. A. Rev., vol. 155. 

Ogg, F. A., The Governments of Europe, N. Y., 1913. 

Pierre, Eugene, Traits de droit politique, electoral et parlementaire, 
Paris. 

Poincare', Raymond, How France is Governed. Eng. Trans., London 
and N. Y., 1913. 


THE GOVERNMENT OF FRANCE. 


177 


Scherer , Edmond, La Domocratie et la France. 

Shaw , Albert, Municipal Government in Continental Europe, N. Y., 1895. 
Stephen , Sir James, Lectures on the History of France, 2 vols., 3d ed., 
London, 1857. 

Tocqueville , Alexis de, L’Ancien Regime et la Revolution, and Recollec¬ 
tions (Trans. London, 1896). 

Villeneuve, M. de la Bigne de, Elements de Droit constitutionnel fran^ais, 
Paris, 1892. 


VIII. 


THE GOVERNMENT OF GREAT BRITAIN. 

I. Central Government. 

Origin of the English Constitution. — The history of gov¬ 
ernment in England begins with the primitive politics of the 
Teutonic races. Those great race movements of the fifth cen¬ 
tury which put the Frank into the Roman’s place in Gaul put 
the Angles and Saxons in the place* of the Roman in Britain. 
The first Teutons who made a permanent settlement in Britain 
(a.d. 449) did not find the Roman there; the imperial legions 
had been withdrawn from the island almost forty years before 
(a.d. 410) to serve the Empire in her contest with invading 
hosts nearer home. But the new-comers from the lowlands 
about the Elbe and the Weser found there many splendid and 
impressive monuments of the civilization which everywhere 
kept company with Roman dominion. What effect these evi¬ 
dences of the displaced system of Rome may have had upon 
the rough seamen who made the new conquest, or how much of 
Roman influence may have remained with the people of Britain 
to be handed on, in faint reproduction, to future masters of the 
island, it is impossible to say. Certainly, however, there was 
nothing of Rome’s handiwork in the forms of government which 
the Teutons established at the basis of English politics. Those 
forms were their own. They were reproductions, as nearly as the 
conditions of conquest would permit, of the institutions which 
the Romans had seen in use among their redoubtable foes beyond 
the Rhine before ever the Empire had suffered serious inroad. 

Primitive Teutonic Institutions. — These institutions had 
none of the national character which t^iey were in the course of 

178 


THE GOVERNMENT OF GREAT BRITAIN. 


179 


time to acquire. They illustrated the well-known historical se¬ 
quence, in which local tribal government always precedes central 
national government. Men governed themselves as families and 
small communities before they were governed as nations. For 
the Germans of that early time the village was the centre of 
political life; national organization they at first scarcely knew 
except for purposes of war; kingship among them was honorary 
and typical rather than real. The freemen of each little com¬ 
munity in times of peace directed their own affairs with quite 
absolute freedom in village meeting. Even in war each freeman 
had a vote in the distribution of booty and could set his own im¬ 
perative individuality as a more or less effectual check upon the 
wilfulness of his commander (pages 94-98). A very fierce 
democratic temper seems to have ruled in the politics of that 
rough primitive time. And it is not at all likely that this temper 
was a whit abated among the hardy pirates, as tempestuous as 
the northern waters which they braved, who founded new tribal 
kingdoms in Britain in the fifth century. 

Institutional Changes effected by Conquest. — Concerted, 
organized movements for conquest did the same thing for the 
Angles and Saxons that they did for the Franks (page 102): 
they made real kingship necessary as an abiding basis for national 
organization. The military leader was of necessity constituted 
permanent king, the same cohesion being needed to follow up 
and enjoy conquest that had been needed to effect it. But the 
new kingdoms were at first quite small, — small as the island 
was, it held many such, — and the internal organization of the 
tribes was probably not deeply affected by the fact that a throne 
had been set up. The people gathered, as was their long-time 
wont, into more or less compact but always small communities, 
round about the homesteads and villages the Bomans had built; 
enjoying their lands according to some system of ownership 
which left the chief pastures and the principal water supply 
open to use by all and reserved only the arable land to separate 
use by individuals. Justice and government still proceeded, as 
of old, at first hand, from the meeting of village freemen. 

The Hundred-moot and the Folk-moot. — But there was, 
yi Resides, a wider organization, possessing features which possibly 


180 


THE GOVERNMENT OF GREAT BRITAIN. 


had not been quite so fully and symmetrically developed and 
integrated in earlier practice. Communities were combined into 
‘hundreds/ and it was a combination of ‘hundreds/ doubtless, 
that constituted the little kingdoms of the first periods of Saxon 
dominion, — some of which at any rate became the ‘ shires 9 or 
counties of the later times when all England was united under 
one rule. The ‘ hundred/ like the smaller units of the system, 
the several villages or communities, had its ‘ moot ’ or meeting, 
composed of the priest, the reeve, and four men from each 
township within its limits. The principal functions of this 
hundred-moot were those of a court: for the hundred was dis¬ 
tinctively a judicial rather than an administrative district. Above 
the hundred-moot, at the top of the primitive system, was the 
general folk-moot, a general assembly of the freemen, playing 
the same part as tribal or national council that Tacitus had 
seen similar assemblies play in Germany in the first century. 

English Kingdom and English County. — When the Eng¬ 
lish kingdoms were many, each, probably, had its general council, 
which sat under the presidency of the king, and which advised 
with him concerning the common interests with some at least of 
the old authoritativeness which its conclusions had possessed be¬ 
fore the new kingship had been created. When England had 
been made a single kingdom, in the later days when the Norman 
conquest was drawing near, these divisions of the land, these 
kingdoms which had once had independent political life, sank to 
the role of counties, and their folk-moots, which had once been 
national assemblies, became mere shire-moots, mere county courts, 
presided over by the sheriff as representative of the king, the 
bishop as representative of mother Church, and the ealdorman as 
representative of the tribe, and composed of the landowners of 
the shire, the reeve, priest, and four men from each township, 
twelve representatives from each hundred, and all officials. 

The Witenagemot. —National authority, meantime, had 
passed, so far as it had passed to any assembly, to an assembly of 
another kind, to a great council called the Witenagemot, or Assem¬ 
bly of the Wise. We have no certain knowledge of the exact 
character of this famous national body; but we are probably 
warranted in concluding that it was formed more or less closely 


THE GOVERNMENT OF GREAT BRITAIN. 


181 


upon the model of the assemblies which it had supplanted. The 
national’councils of the smaller kingdoms of the earlier time, 
which had now shrunk into mere shire courts, handed on their 
functions of general counsel, and in theory also, it may be, their 
organization, to the Witenagemot. Possibly it was within the 
right of every freeman to attend and vote in this great meeting 
of the nation; but as a matter of fact, its membership was limited, 
apparently from the first, to the chief men of the shires and of 
the royal household. To it came the sheriffs, the ealdormen, the 
bishops, and the chief officers and thegns about the king’s person. 
When the king wished a veritable national council he would 
sometimes summon the moots of all the shires to meet him in 
grand Mycel-gemdt at some central point in the kingdom and de¬ 
clare their assent to his laws. This he did to spare himself the 
trouble of taking his laws to each shire moot in turn, as it had 
once been the king’s custom to do. 

Powers of the Witenagemot. — The powers of the Witen¬ 
agemot were very great indeed, — in theory always, perhaps at 
first in practice also. To it belonged the old popular prerogative 
of electing, or upon occasion deposing, the king. It gave or with¬ 
held its consent to grants of the public land. It was the supreme 
court of the kingdom, for both civil and criminal cases. It 
shared with the king the lawmaking and appointing power, and 
joined him in the imposition of taxes. As the king grew in power 
and influence, the cooperation of the Witenagemot in judgment 
and legislation became more and more a matter of form only; 
but always there were two or three yearly meetings of the body, 
and its action, though in most things merely formal and perfunc¬ 
tory, was yet a necessary and, symbolically, a valuable form, 
preserving, as it did, the memory, if no more, of the nation’s 
freedom. 

The Norman Feudalization —With the Norman conquest 
came profound changes in the government of England. The chief 
officers of the shire became royal officers merely, the ecclesiasti¬ 
cal authority being set apart to itself, and the ealdorman being 
shut out from all administrative functions. The land William 
confiscated in vast quantities, in the ruthless thoroughness of his 
conquest, because of the stubborn resistance of its English own 


182 


THE GOVERNMENT OF GREAT BRITAIN. 


ers, and granted away in new estates to Normans or to submis¬ 
sive Englishmen, to be held in feudal subjection to himself. 
The feudal system, so familiar to the historian of the Continent^ 
with its separated baronial jurisdictions and its personal depend¬ 
encies of vassal upon lord and of lord upon overlord, was per¬ 
fected in England also. Township courts in most places gave 
way to baronial courts ; hundred-moots lost their one-time impor¬ 
tance ; and all judicial power that did not pass into the hands of 
feudal lords tended to pass to the court of the sheriff, the king’s 
lieutenant in the shire. Still William kept the barons under; he 
did not suffer their power to become threatening to his own, but 
kept them always dependent upon himself for the continued exer¬ 
cise of their privileges. 

The Great Council of the Norman Kings. —More impor¬ 
tant still, he preserved, with modifications to suit his change of 
system, the national assembly of the Saxon polity. He claimed 
to come to the throne by natural right and legal succession, not 
by conquest, and he sought to continue, so far as might be, the 
constitution under which he claimed succession. He sought and 
obtained formal election to the throne, as nearly as possible in 
accordance with the ancient forms; and, his throne secure, he 
endeavored to rule within the sanction of ancient custom. He 
maintained the Witenagemot. But its character greatly changed 
under his hands. Revolt hardened his rule, to the exclusion 
of the old national element from the central assembly of the 
realm. As the new organization of the country assumed a feu¬ 
dal character of the Norman type, that new character became 
mirrored in the composition of the royal council. The Mycel- 
gemdt merged in the Great Council (magnum or commune con¬ 
cilium) of the king’s tenants-in-chief. To it came at first, besides 
the earls, the barons, and the knights, who either in fact or in 
feudal theory held their lands of the king, the archbishops also, 
the bishops, and the abbots; subsequently, however, even these 
ecclesiastical members were admitted only as barons, as holding 
land of the king and so members of the feudal hierarchy. In 
theory, it would seem, every landowner was entitled to claim a 
seat in this Council; it was meant to hold the place of a national 
assembly which could speak for the governing classes; but in 


THE GOVERNMENT OF GREAT BRITAIN. 


183 


fact only the greater barons and churchmen as a rule attended, 
and ‘ tenure by barony ’ became at length the only valid title to 
membership. The development of the Great Council of the 
Norman kings is the central subject of early English constitu¬ 
tional history; for from it may be said to have sprung the whole 
effective organization of the present government of England. Out 
of it, directly or indirectly, by one process or another, have been 
evolved Parliament, the Cabinet, and the courts of law. 

The Feudal System in England. —England was not feudalized 
by the Normans. Feudalization had grown there under Saxon and Dane 
as elsewhere under Frank and Goth. Society in England, as on the 
Continent, had divided into ranks of nobles, freemen, and slaves bound 
together by personal fealty and the principles of land ownership. What 
the Norman did was to give new directions to the indigenous growth of 
feudalism. The system had not gone to such lengths of disintegration 
in England as it afterwards went on the Continent, and William the 
Conqueror’s first care when compacting his power in the island was to 
subordinate all feudal elements permanently to the Crown. He saw to 
it, by the unhesitating use of his great power, that no baron should be 
able to cope with the king without wide combination with other barons, 
such as watchful kings could probably always prevent; and he dulled 
the edge of hostile feeling by giving to the greater barons of the kingdom 
a function of weight in the management of affairs by bringing them into 
peaceful and legitimate combination in the Great Council, which he called 
together three times every year, and whose advice he never refused at 
least to hear. The Council retained, formally at any rate, the right to 
choose the king, and all laws were declared to be enacted by and with its 
advice and consent. 

Character of English Institutional Growth. — It has been 
noted as a leading characteristic of the constitutional history of 
England that her political institutions have been incessantly in 
process of development, a singular continuity marking the whole 
of the transition from her most ancient to her present forms of 
government. It is not a history of breaks or of new establish¬ 
ments, or of successive new creations of instrumentalities of 
legislation and administration: all the way through it is a his¬ 
tory of almost insensible change, of slow modification, and of 
unforced, almost of unconscious, development. Very great con¬ 
trasts appear between the character of her government in one 
age and its character in another age distant one or more cen* 


184 


THE GOVERNMENT OF GREAT BRITAIN. 


turies from the first; but it is very difficult to perceive any 
alteration at all when comparison is made from generation to 
generation. Almost no changes can be given exact dates: each 
took place ‘ about ? such and such a year, or in this or that long 
reign. The whole process, therefore, is one which may be out¬ 
lined in brief epitome: its stages are long, its features large, its 
details unessential to clearness. 

The Course of Development. — In briefest summary the 
facts are these: the Great (or National) Council itself became the 
Parliament of the realm; those of its members, as originally con¬ 
stituted, who were state officers and chief officials of the court 
became a Permanent royal Council, out of which, in course of 
time grew the more modern Privy Council and at length the Cab¬ 
inet ; and whose members of the Permanent Council whose duties 
were financial and judicial gradually drew apart from the rest for 
the exercise of their functions, their work being finally divided 
among them according to its nature, and the several bodies into 
which they thus fell apart becoming, in the end, the courts of 
Exchequer, of Chancery, and of common law. 

The Permanent Council. —The body of state and court 
officers whom the king kept always about him as his ‘ Ordinary ’ 
or Permanent Council were originally all of them members of the 
Great Council and seem at first to have acted as a sort of “ com¬ 
mittee, or inner circle,” of that greater body. The Great Council 
met but three times in the year; its organization was not perma¬ 
nent ; its membership varied, both numerically and personally, 
from year to year. The officers of the permanent service, on the 
other hand, were always within easy reach of consultation; they 
were in a certain sense picked men out of the larger body of the 
national Council; it was natural that they should be consulted 
by the king and that their advice, given in their collective ca¬ 
pacity as a smaller council, should carry with it the weight of 
their connection with the more authoritative Great Council. As 
a matter of fact at any rate, they acquired powers almost coinci¬ 
dent with those of the national body itself. Their powers came, 
indeed, to possess an importance superior even to those of the 
more august assembly, being exercised as they were, not inter¬ 
mittently or occasionally, but continuously ; not with a mere out- 


THE GOVERNMENT OF GREAT BRITAIN. 


185 


side acquaintance with the posture of affairs, but with an inside 
intimacy of knowledge. 

Composition of Permanent Council. — Under the Nor- 
man kings the membership of the Permanent Council consisted, 
usually, of the two archbishops (of Canterbury and of York), the 
Justiciar, the Treasurer, the Chancellor, the Steward, the Mar¬ 
shall, the Chamberlain, and the Butler, with the occasional addi¬ 
tion of other officials, such as the king’s Sergeant, and of such 
bishops and barons as the sovereign saw fit from time to time to 
summon. There was, however, no fixed rule as to its composition. 
Possibly every baron, as a member of the Great Council, could, if 
he had so chosen, have attended the sittings of this section of the 
Great Council also, which, while the Great Council was not in 
session, masqueraded as its deputy and proxy. Practically, it 
would seem always, as a rule, to have lain within the king’s 
choice to constitute it how he would. 

The Powers of the Permanent Council were enormous: 
were as large as those of the king himself, who constituted it 
his administrative, judicial, and legislative agent. Its “work 
was to counsel and assist the king in the execution of every 
power of the crown which was not exercised through the ma¬ 
chinery of the common law ”; 1 and “ the king could do nearly 
every act in his Permanent Council of great men which he could 
perform when surrounded by a larger number of his nobles ; 
except impose taxes on those nobles themselves.” 2 But the Per¬ 
manent Council very early ceased to act as a whole in the dis¬ 
charge of all its functions alike. Itself a committee, it presently, 
in its turn, began to split up into committees. 

The Law Courts. —Men specially learned in the law were 
brought into its membership, the later kings not hesitating, when 
the needs of the service demanded, to introduce commoners, 
as the Council drifted away from even its nominal connection with 
the Great Council; and to these the financial and judicial func¬ 
tions of the Crown were more and more exclusively entrusted. 
(Compare page 141.) It was not long before (a) a separate Court 
of Exchequer , which was at first charged' principally with the 

1 Stubbs, Constitutional History of England, Vol. HI., p. 252. 

2 A. V. Dicey, The Privy Council , p. ii. 


186 


THE GOVERNMENT OF GREAT BRITAIN. 


audit of finance accounts, had been permanently assigned its 
special ‘barons’ as Justices, and had acquired jurisdiction over 
all cases in which the king was directly concerned; (6) another 
special bench of judges received, as a Court of Common Pleas , 
jurisdiction over all civil cases between subject and subject; (c) 
still another came to figure as a supreme court, or Court of King’s 
Bench , which always accompanied the sovereign wherever he 
went, which was in theory presided over by the king himself, and 
which was empowered to supervise local justice and itself control 
all cases not specially set apart for the hearing of other courts; and 
( d ) the Chancellor, who had once been merely president, in the 
king’s absence, of the Permanent Council when it heard appeals 
in its judicial capacity, absorbed to himself, in his Court of 
Chancery , the whole of that so-called ‘ equitable ’ function of the 
Crown by virtue of which the king granted relief to suitors for 
whose cases the common law provided no adequate process. The 
Chancellorship was thus put in the way of attaining to its later- 
day partial ascendency over the ‘ courts of law.’ This process of 
the differentiation and development of the courts began in the early 
years of the twelfth century and may be said to have been com¬ 
pleted by the middle of the fourteenth. 

Parliament. — Meantime the national body, the Great 
Council, from which the Permanent Council and courts had been 
derived, had had its own expansions and changes of form and had 
taken on a new character of the utmost significance. Not greatly 
altered in its composition during the century which followed the 
Norman conquest, the Great Council was profoundly affected by 
the outcome of Magna Charta (a.d. 1215) and the momentous 
constitutional struggles which followed it. It was then that the 
principle of representation was first introduced into the constitu¬ 
tion of Parliament and that commoners as well as nobles were 
given seats in the national assembly. The archbishops, bishops, 
and abbots attended as of course, as always before, and the earls 
and greater barons held themselves equally entitled to be sum¬ 
moned always by special personal summons; but the lesser barons, 
who formerly had been called to the Council, not by personal 
summons, but only by a general summons addressed to them, 
along with all tenants-in-chief, through the sheriffs of the counties, 


THE GOVERNMENT OF GREAT BRITAIN. 


187 


had given over attending because of the expense and inconven- 
ience of the privilege, and were accordingly no longer called. 
Their place was filled by representation. Writs addressed to the 
sheriffs commanded the election of representatives of the lower 
clergy and, more important still, of representatives (knights) of 
the shires and (burgesses) of the towns. The Parliament which 
Edward I. summoned in 1295 contained all these elements and es¬ 
tablished the type for the composition of all future Parliaments. 

In the fourteenth clause of Magna Charta John was made to 
promise that, besides summoning the archbishops, bishops, abbots, earls, 
and greater barons severally, by special personal letters, he would sum¬ 
mon all lesser barons also by a general summons, through the sheriffs and 
bailiffs. But this general summons failed of the desired effect. 

Representatives from the towns were summoned first in 1265 by 
Earl Simon of Montfort, who knew that he could count upon the support 
of the commons of England in his contest with the king, Henry III., and 
who called burgesses to the Parliament which he constituted during the 
brief period of his supremacy in order to give open proof of that support. 
Edward I. followed Montfort’s example in 1295, not because he was de¬ 
liberately minded to form a truly representative assembly as a wise step 
in constitutional development, but because he wanted money and knew 
that taxes would be most readily paid if voted by an assembly represents 
ing all classes. 

Representatives from the shires (knights) had often been called 
to Parliament before 1265. Step by step, first one element of the nation 
and then another had been introduced into Parliament: first the lesser 
barons, by general summons,—only, however, to drop out again, — then 
the gentry of the shires by election in the counties, finally the burghers 
of the towns by similar election in county court. 

Genesis of the Two Houses. — Such a body as the Parlia¬ 
ment summoned by Edward was, however, too conglomerate, too 
little homogeneous to hold together. It did not long act as a single 
assembly; but presently fell apart into two ‘ houses/ Had the 
lower clergy continued to claim representation, there might and 
probably would have been three houses instead of two. But, 
instead of setting up a separate house in the civil Parliament, the 
clergy drew apart for the creation of an entirely distinct body, 
which, under the name of ‘ Convocation/ was to constitute a 
separate ecclesiastical parliament, devoting itself exclusively to 
the government of the Church. Their share in the management 


188 


THE GOVERNMENT OF GREAT BRITAIN. 


of temporal affairs they left altogether to the ‘ spiritual lords/ the 
few greater magnates of the Church who retained their places in 
the national council, and to such lay representatives as the clergy 
could assist in electing to the lower house. 

There were left, therefore, in Parliament two main 
elements, lords and commoners. The lords, to whom the arch¬ 
bishops, bishops, and abbots adhered by immemorial wont, formed 
a house to themselves, the House of Lords. The commoners 
from the towns, who were soon joined by the middle order of 
gentry, the knights of the shires, who were neither great lords 
summoned by personal summons nor yet commoners, formed the 
other house, the House of Commons. These changes also were 
completed by the middle of the fourteenth century. Parliament 
was by that time, outwardly, just what it is now. 

The Privy Council. — The Great Council and its direct 
heir, Parliament, were not a little jealous of the enormous powers 
wielded by the preferred counsellors of the king whom he main¬ 
tained in permanent relations of confidence with himself, and 
through whom he suffered to be exercised some of the greatest 
of the royal prerogatives. Especially did the arrangement seem 
obnoxious when the vitality of the Permanent Council passed 
to a still smaller ‘ Privy’ Council. This body was to the Per¬ 
manent Council what the Permanent Council had been to the 
Great Council. It was still another “ inner circle.’’ It emerged 
during the reign of Henry VI. (1422-1461). The Permanent 
Council had become too large and unwieldy for the continuance 
of its intimate relations with the sovereign; it could no longer 
be used as a whole for purposes of private advice and resolution •, 
and the king separated from the ‘ ordinary ’ councillors certain 
selected men whom he constituted his Privy Council, binding 
them to himself by special oaths of fidelity and secrecy. From 
that moment the Permanent Council was virtually superseded, and 
the Privy Council became the chief administrative and govern¬ 
ing body of the realm. 

The Privy Council assumes Judicial Powers. —Many of 
the judicial prerogatives which really belonged to the king, when 
sitting in his Great Council, or Parliament, had been claimed for 
the king’s Permanent Council: hence the distinct law courts 


THE GOVERNMENT OF GREAT BRITAIN. 189 

whioli were developed from its midst (sec. 847); and the same 
rights of exercising the powers of a court which had been 
assumed by the Permanent Council were in the later time arro¬ 
gated to itself by the Permanent Council’s proxy, the Privy 
Council. Out of it came, in course of time, the well-remembered 
Council of the North, the hated Star Chamber, and the odious 
High Commission Court, which were not abolished until 1641, 
when that great revolution had fairly set in, which was to crush 
arbitrary executive power forever in England, and to usher in the 
complete supremacy of Parliament. 

Origin of the Cabinet. —Meanwhile, long before the parlia¬ 
mentary wars had come to a head, the same causes that had 
produced the Permanent and Privy Councils had again asserted 
their strength and produced the Cabinet , still a third “ inner 
circle,” this time of the Privy Council; a small body selected for 
special confidence by the king from the general body of his 
counsellors, and meeting him, not in the larger council chamber, 
but in a ‘ cabinet,’ or smaller room, apart. The Privy Council 
had, in its turn, become “too large for despatch and secrecy. 
The rank of Privy Councillor was often bestowed as an honorary 
distinction on persons to whom nothing was confided, and whose 
opinion was never asked. The Sovereign, on the most important 
occasions, resorted for advice to a small knot of leading ministers. 
The advantages and disadvantages of this course were early 
pointed out by Bacon, with his usual judgment and sagacity; but 
it was not till after the Restoration that the interior Council 
began to attract general notice. During many years old-fashioned 
politicians continued to regard the Cabinet as an unconstitutional 
and dangerous board. Nevertheless, it constantly became more 
and more important. It at length drew to itself the chief execu¬ 
tive power, and has now been regarded during several generations 
as an essential part of our polity. Yet, strange to say, it still 
continues to be altogether unknown to the law. The names of 
the noblemen and gentlemen who compose it are never officially 
announced to the public; no record is kept of its meetings and 
resolutions; nor has its existence ever been recognized by any 
Act of Parliament.” 1 

1 Macaulay, History of England , Vol I., pp. 197, 198 (Harper’s ed., 1849). 


190 


THE GOVERNMENT OF GREAT BRITAIN. 


The Development of the Cabinet. — The Cabinet first comes 
distinctly into public view as a preferred candidate for the highest 
executive place in the reign of Charles II. It is now the central 
body of the English Constitution. The steps by which it ap¬ 
proached its present position are thus summarized by a distin¬ 
guished English writer: — 

“ (1) First we find the Cabinet appearing in the shape of a 
small, informal, irregular Camarilla , selected at the pleasure of 
the Sovereign from the larger body of the Privy Council, con¬ 
sulted by and privately advising the Crown, but with no power 
to take any resolutions of State, or perform any act of government 
without the assent of the Privy Council, and not as yet even 
commonly known by its present name. This was its condition 
anterior to the reign of Charles I. 

“ (2) Then succeeds a second period, during which this Coun¬ 
cil of advice obtains its distinctive title of Cabinet, but without 
acquiring any recognized status, or permanently displacing the 
Privy Council from its position of de facto as well as de jure the 
only authoritative body of advisers of the Crown. (Reign of 
Charles I. and Charles II., the latter of whom governed during 
a part of his reign by means of a Cabinet, and towards its close 
through a ‘reconstructed’ Privy Council.) 

“ (3) A third period, commencing with the formation by 
William III.” of a ministry representing, not several parties, 
as often before, but the party predominant in the state, “the 
first ministry approaching the modern type. The Cabinet, 
though still remaining, as it remains to this day, unknown to 
the Constitution,” had “ now become de facto, though not de jure , 
the real and sole supreme consultative council and executive au¬ 
thority in the State.” It was “ still, however, regarded with 
jealousy, and the full realization of the modern theory of minis¬ 
terial responsibility, by the admission of its members to a seat in 
Parliament,” was “ only by degrees effected. 

“ (4) Finally, towards the close of the eighteenth century, the 
political conception of the Cabinet as a body, — necessarily con¬ 
sisting (a) of members of the Legislature ( b ) of the same politi¬ 
cal views, and chosen from the party possessing a majority in 
the House of Commons; (c) prosecuting a concerted policy; (d) 


THE GOVERNMENT OF GREAT BRITAIN. 


191 


under a common responsibility to be signified by collective resig 
nation in the event of parliamentary censure; and (e) acknow¬ 
ledging a common subordination to one chief minister, — took 
definitive shape in our modern theory of the Constitution, and 
so remains to the present day.” 1 

Parliament and the Ministers. — The principles concern¬ 
ing the composition of the modern Cabinets which are stated in 
this last paragraph of Mr. Traill’s summary may be said to have 
been slowly developed out of the once changeful relations between 
Parliament and the ministers of the Crown. As I have said (page 
188), the national council very early developed a profound jeal¬ 
ousy of the power and influence of the small and private council 
of state and court officials which the king associated with himself 
in the exercise of his great prerogatives. By every means it 
sought to control the ministers. Abandoning very soon, as revo¬ 
lutionary, all efforts to hold the king himself personally respon¬ 
sible for executive acts, Parliament early accepted the theory that 
the king could do no wrong; that breaches of law and of right 
committed by the government were committed always, — so the 
theory ran, — by the vicious advice of the king’s personal advisers; 
they could do wrong (here the theory shaded off into fact), and 
they should be held responsible for all the wrong done. So early 
as the close of the twelfth century the Great Council deposed Wil¬ 
liam Longchamp, Justiciar and Chancellor of Richard I., for abuse 
of power. During the fourteenth century Parliament claimed and 
once or twice exercised the right to appoint ministers and judges; 
it beheaded Edward II.’s Treasurer and imprisoned hi$ Chancel¬ 
lor for their part in Edward’s illegal acts; and at the close of the 
century (1386) it impeached Michael de la Pole, Richard II.’s 
minister, notwithstanding the fact that he was able to plead the 
king’s direct commands in justification of what he had done. In 
the seventeenth century a new ground of impeachment was added. 
From that time out, ministers were held responsible, by the se¬ 
vere processes of trial by Parliament for high crimes and mis¬ 
demeanors, not only for illegal, but also for bad advice to the 
Crown, for gross mistakes of policy as well as for overt breaches 
of law and of constitutional rights. 

i H. D. Traill, Central Government (English Citizen Series), pp. 23-25. 


192 


THE GOVERNMENT OF GREAT BRITAIN. 


Disappearance of Impeachment. — The Act of Settlement 
and the policy of William and Mary inaugurated, however, the 
final period of Parliament’s supremacy. Parliament’s preferences 
began to be regarded habitually in the choice of ministers, and 
impeachment, consequently, began gradually to fall into disuse. 
Its place was taken by parliamentary votes,—finally by votes of 
the House of Commons alone. Ministers who cannot command a 
majority in the House of Commons for the measures which they 
propose resign, and Parliament has its own way concerning the 
conduct of the government. 

The Executive. — The Executive, under the English sys¬ 
tem, so far as it may be described at once briefly and correctly, 
may be said to consist, therefore, of the Sovereign and a Cabinet 
of ministers appointed with the Sovereign’s formal consent. All 
real authority is with the Cabinet; though the ministers are, in 
law, only the Sovereign’s advisers, and the government is con¬ 
ducted in the Sovereign’s name. The true place of the Sovereign 
in the system is that of an honored and influential hereditary 
councillor, to whose advice an exalted title and a constant famili¬ 
arity with the greater affairs of state lend a peculiar weight. 
The king 1 is in fact, though of course not in legal theory, a 
permanent minister, differing from the other ministers chiefly 
in not being responsible to Parliament for his acts, and on that 
account less powerful than they. 

The Sovereign is not a member of the Cabinet because George I. 
could not speak English. Until the accession of George I. the king always 
attended* Cabinet councils; George did not do so because he could not 
either understand or be understood in the discussions of the ministers. 
Since his time, therefore, the Sovereign has not sat with the Cabinet. A 
similar example of the interesting ease with which men of our race establish 
and observe precedents is to be found in the practice on the part of Presi¬ 
dents of the United States of sending written messages to Congress. 
Washington and John Adams addressed Congress in person on public 
affairs ; but Jefferson, the third President, was not an easy speaker, and 
preferred to send a written message. Subsequent Presidents followed his 
example as of course. Hence a sacred rule of constitutional actionl 1 

1 A rule which President Wilson, himself, was the first President to violate. 
He has never sent a written message to the Congress, but has always ad¬ 
dressed it in person. 


THE GOVERNMENT OF GREAT BRITAIN. 


193 


Position of the Cabinet. — The Cabinet consists of the 
principal ministers of state and has reached its present position 
of power in the government because of its responsibility to 
Parliament. The chief interest of English constitutional his¬ 
tory centres in the struggle of Parliament to establish its 
supremacy over all other authorities in the conduct of the gov¬ 
ernment; that struggle issued in the last century in the com¬ 
plete triumph of Parliament; it has reached its farthest logical 
consequence in 1911 in the concentration of parliamentary 
authority in the popular house of Parliament, the House of 
Commons. Parliament always claimed the right to direct in 
the name of the people, of the nation; that was the solid basis 
of all its pretensions; and so soon as reforms in the composition 
of the House of Commons had made it truly representative of 
the people, the House of Lords, which represents the hereditary, 
not the representative, principle, necessarily lost some part of its 
political authority. It is constantly recruited, by the qreation of 
peerages, from all classes of successful men, scientists, manufac¬ 
turers, lawyers, diplomatists, journalists, poets ; but it is recruited 
by appointment, not by election; its votes are not controlled by 
the electorate ; and precedence in affairs has fallen to the people’s 
chamber. 

Appointment of the Cabinet Ministers—The responsi¬ 
bility of the ministers to Parliament constitutes their strength 
because it makes them the agents of Parliament: and the agents 
of a sovereign authority virtually share its sovereignty. The 
king appoints only such ministers as have the confidence of the 
House of Commons; and he does it in this way: he sends for 
the recognized leader of the political party which has the major¬ 
ity in the House of Commons and asks him to form a Cabinet. 
If this leader thinks that his party will approve of his assuming 
such a responsibility, he accepts the commission, and, usually 
after due consultation with other prominent members of his 
party, gives to the Sovereign a list of the men whom he recom¬ 
mends for appointment to the chief offices of state. These the 
Sovereign appoints and commissions as of course. They are 
always men chosen from among the members of both houses of 
Parliament, and generally because they have proved there their 


194 


THE GOVERNMENT OF GREAT BRITAIN. 


ability to lead. They have, so to say, chosen themselves by a 
career of steady success in the debates of the Houses : they have 
come to the front by their own efforts, by force of their own abil¬ 
ity, and usually represent tried parliamentary capacity. Such 
capacity is necessary for their success as ministers ; for, after they 
have entered the Cabinet, they constitute, in effect, a committee 
of the majority of the House of Commons, commissioned to lead 
Parliament in debate and legislation, to keep it, — and, through 
it, the country at large, — informed concerning all important 
affairs of state which can prudently be made public, and to carry 
out in the conduct of the government the policy approved of by 
the representatives of the people. 

Composition of the Cabinet. — The Cabinet does not con¬ 
sist invariably of the same number of ministers. Until 1916 
eleven officials always have had seats in it; namely, the First 
Lord of the Treasury, the Lord Chancellor, the Lord President of 
the Council, the Lord Privy Seal, the Chancellor of the Exchequer, 
the five Secretaries of State (for Home Affairs, for Foreign 
Affairs, for the Colonies, for India, and for War), and the First 
Lord of the Admiralty. To these were generally added from 
three to six others, according to circumstances : often, for in¬ 
stance, the President of the Board of Trade, generally of late the 
Chief Secretary for Ireland, frequently the President of the Local 
Government Board. The general rule which governed these 
additions was, that every interest which was likely to be promi¬ 
nent in the debates and proceedings of the House of Commons 
ought to have a Cabinet minister to speak for it and to offer to 
the House responsible advice. When Mr. Lloyd George became 
Prime Minister in December, 1916, he formed a War Cabinet of 
five members, expanded to six in 1917 with an occasional 
seventh, but did not include any of the principal Secretaries 
of State. Three members of the War Cabinet are ministers 
‘ without Portfolio/ The word 1 Ministry ’ is of wider meaning 
than the word ‘Cabinet/ The ‘Ministry ? consists of all those 
executive officers who have seats in Parliament. These are the 
‘ political ’ officers, who are expected to resign their offices when 
the Cabinet is defeated in the Commons. But not all of them 
are members of the Cabinet. The Coalition Cabinet of Mr. 


THE GOVERNMENT OF GREAT BRITAIN. 


195 


Asquith in 1916 consisted of twenty-three persons; but besides 
these there are some forty-five non-Cabinet ministers in Parlia¬ 
ment. (Compare p. 202.) 

No member of the House of Commons may accept office with¬ 
out the approval of his constituents. Upon receiving an appoint¬ 
ment as minister he must resign his seat in the House and seek 
reelection, as representative plus minister. 1 The whole matter is 
merely formal, however, in most cases. The opposite party do 
not usually, under such circumstances, contest the seat a second 
time, and the minister is reelected without opposition. 

The custom of the Sovereign’s selecting only the chief minister 
and intrusting him with the formation of a ministry also, as well 
as the Sovereign’s absence from Cabinet meetings, originated with 
George I., who did not know enough of English public men to 
choose all the ministers, and so left the choice to Walpole. 

This method of forming a ministry is the outcome of Par¬ 
liament’s efforts to hold the king’s ministers to a strict responsi¬ 
bility to itself. None but members of their own party would suit 
the majority in Parliament as ministers; and since the ministers 
have to explain and excuse their policy to the Houses it is best 
that they should be members of the Houses with the full privi¬ 
leges of the floor. Only by such an arrangement could the full 
harmony desired between Parliament and the ministers be main¬ 
tained : by face to face intercourse. 

Ministerial Responsibility. — If the ministers are defeated 
on any important measure in the House of Commons, or if any 
vote of censure is passed upon them in that House, they must 
resign, — such is the command of precedent, — and another min¬ 
istry must be formed which is in accord with the new majority. 
The ministers must resign together because the best form of 
responsibility for their conduct of the government can be secured 
only when their measures are taken in concert, and the House of 
Commons would be cheated of all real control of them if they 
could, upon each utterance of its condemnation of an executive 
act, or upon each rejection by it of a measure proposed or sup. 
ported by them, ‘ throw overboard ’ only those of their number 
whose departments were most particularly affected by the vote, 

1 This requirement has been waived by acts of Parliament during the war. 


196 


THE GOVERNMENT OF GREAT BRITAIN. 


and so keep substantially tbe same body of men in office. If 
a defeated or censured ministry think that the House of Com. 
mons in its adverse vote has not really spoken the opinion of 
the constituencies, they can advise the Sovereign to dissolve the 
House and order a new election; that advice must be taken by 
the Sovereign; and the ministers stand or fall according to the 
disposition of the new House towards them. 

It should be added that exceptional cases do sometimes arise 
in which responsibility for an objectionable course of action can 
be so plainly and directly fixed upon a particular minister, who 
has acted, it may be, without the concurrence, possibly without 
the knowledge, of his colleagues, that his separate dismissal 
from office is recognized as the only proper remedy. A notable 
instance of this sort arose in England in 1851, when Lord Palm¬ 
erston, then foreign secretary, was dismissed from office for 
adding to various other acts of too great independence an un_ 
authorized expression of approval of the coup d’etat of Louis 
Napoleon in France. 

Legal Status of the Cabinet. — The peculiar historical 
origin of the Cabinet appears in a statement of its position before 
the law. As we have seen (page 189), it is not a body recognized 
by law: its existence, like the existence of not a few other politi¬ 
cal institutions in England, is only customary. The particular 
ministers who form the Cabinet have the legal right to be the 
exclusive advisers of the Crown, — that is, the sole executive 
power, — only by virtue of their membership of the Privy Coun¬ 
cil. They must all be sworn into the membership of that body 
before they can act as confidential servants of the Sovereign. 
The Privy Council itself, however (as a whole, that is), has not 
been asked for political advice for two centuries. It takes no 
part whatever in the function which certain ministers exercise by 
virtue of belonging to it; it is not responsible for the advice they 
give ; and it cannot in any way control that advice. Membership 
of the Privy Council, moreover, is for life. The leaders of the 
minority in the Commons, having themselves once been minis¬ 
ters, are still members of the Council and have still the same 
legal right to advise the Crown. 


THE GOVERNMENT OF GREAT BRITAIN. 


197 


Initiative of the Cabinet in Legislation. — Having inher¬ 
ited the right of initiative in legislation which once belonged to 
the Crown, the Cabinet shape and direct the business of the 
Houses. Most of the time of Parliament is occupied by the con¬ 
sideration of measures which they have prepared and introduced ; 
at every step in the procedure of the Houses it is the duty of the 
ministers to guide and facilitate business. 

The Prime Minister. — 1 Consistency in policy and vigor in 
administration 9 on the part of the Cabinet are obtained by its 
organization under the authority of one 1 First 5 Minister. This 
Prime Minister generally holds the office of First Lord of the 
Treasury, though it is within his choice to hold another, if he will. 
It is not the office which gives him primacy in the Cabinet, but 
his recognized weight as leader of his party. The leader chosen 
by the Sovereign to form the ministry stands at its head when 
formed. He usually chooses to occupy the office of First Lord of 
the Treasury because the official duties of that place are nominal 
only and leave him free to exercise his important functions as 
leader of the party in power. The Prime Minister, though 
‘unknown to the constitution/ has been given indirect recogni¬ 
tion by a Royal Proclamation of December 2, 1905, giving him 
‘ place and precedence 9 above all his colleagues except the Lord 
Chancellor and next after the Archbishop of York. Recognition 
by statute fixing the order of precedence of public dignitaries 
followed in 1906. 

The Departments of Administration. — So much for the re¬ 
lations of the Cabinet to the Sovereign and to Parliament. When 
we turn to view it in its administrative and governing capacity as 
the English Executive, we see the ministers as heads of depart¬ 
ments, as in other governments. But the departments of the 
central government in England are by no means susceptible of 
brief and simple description as are those of other countries, which 
have been given their present forms by logical and self-consistent 
written constitutions, or by the systematizing initiative of absolute 
monarchs. They hide a thousand intricacies born of that com¬ 
posite development so characteristic of English institutions. 

The Five Great ‘ Offices ’ of State. — Not attempting detail, 
however, it is possible to give a tolerably clear outline of the cen- 


198 


THE GOVERNMENT OF GREAT BRITAIN. 


tral administration of the kingdom in comparatively few words. 
The Treasury I shall describe in a separate paragraph. The 
Home Office has a great variety of duties : it superintends the 
constabulary; oversees, to a limited extent, the local magistracy 
and the administration of prisons; advises the Sovereign with 
reference to the granting of pardons; and is the instrument of 
Parliament in carrying out numerous statutes regulating the hours 
and conditions of labor in mines and factories. The Foreign 
Office describes itself. So do also, sufficiently, the Colonial Office , 
the War Office, and the India Office. 

These live great ‘ Offices ’ are all, historically considered, in a 
certain sense offshoots from a single office, that of the king’s 
Principal Secretary of State. By one of the usual processes of 
English constitutional development, an officer bearing this title 
very early came into existence as one of the most * trusted min¬ 
isters of the Crown. At first only a specially confided-in servant 
of the Sovereign, employed in all sorts of confidential missions, 
he gradually assumed a more regular official place and began to 
absorb various important functions. At length it became neces¬ 
sary to double him and to have two Principal Secretaries of State, 
two men theoretically sharing one and the same office, and alter¬ 
nates of each other. At last he has, for the sake of convenience, 
been quintupled. 

There are five Principal Secretaries of State, all, in theory, 
holding the same office, and each, in theory, legally authorized 
to perform the functions of any or all of the others; but in 
fact, of course, keeping each to a distinct department. There 
is a Principal Secretary of State for the Home Department, 
a Principal Secretary of State for Foreign Affairs, a Principal 
Secretary of State for the Colonies, a Principal Secretary of State 
for War, and a Principal Secretary of State for India. It is an 
interesting and characteristic case of evolution. 

The Admiralty, the Board of Trade, and the Local Govern¬ 
ment Board. — The Admiralty is the naval office. It is presided 
over by a Commissioh of six, consisting of a chairman, entitled 
First Lord of the Admiralty, and five Junior Lords. The Board 


f 


THE GOVERNMENT OF GREAT BRITAIN. 


199 


of Trade is, in form, a committee of the Privy Council. It is 
reconstituted at the opening of each reign by an order in Coun¬ 
cil. It consists, nominally, of “ a President and certain ex officio 
members, including the First Lord of the Treasury, the Chan¬ 
cellor of the Exchequer, the Principal Secretaries of State, the 
Speaker of the House of Commons, and the Archbishop of Can¬ 
terbury.” 1 But it has long since lost all vital connection with 
the Privy Council and all the forms even of board action. Its 
President is now practically itself. Its duties and privileges are 
both extensive and important. It advises the other departments 
concerning all commercial matters, and is the statistical bureau of 
the kingdom; it exercises the state oversight of railways, inspects 
passenger steamers and merchant vessels, examines and commis¬ 
sions masters and mates for the merchant marine, administers the 
statutes concerning harbors, lighthouses, and pilotage, provides 
standard weights and measures, superintends the coinage, and 
supervises the Post Office. The Local Government Board , which 
is also in form a committee of the Privy Council, has also in. 
reality none of the characteristics either of a committee or of a 
board. It is a separate and quite independent department, under 
the control of a President. Its other, nominal, members, the 
Lord President of the Council, the five Principal Secretaries of 
State, the Lord Privy Seal, and the Chancellor of the Exchequer, 
in reality take no part in its management. It is, in effect, the 
English department of the Interior. It is charged with super¬ 
vising the administration, by the local authorities of the kingdom, 
“ of the laws relating to the public health, the relief of the poor, 
and local government ” ; old age pensions ; roads ; — duties more 
important to the daily good government of the country than those 
of any other department. It also specially examines and reports 
upon every private bill affecting private interests. 

The Board of Agriculture. — In 1889 still another depart¬ 
ment was set up which was to be in form a Board but in fact in 
charge of a single minister, its President. Since 1883 there had 
been a Committee of the Privy Council charged with the special 
i Traffi, pp. 126, 127. 


200 


THE GOVERNMENT OF GREAT BRITAIN. 


superintendence of the agricultural interests of the kingdom; in 
1889 it was given a more definite organization and larger powers, 
under the name of The Board of Agriculture, — a Board to consist 
nominally of the Lord President of the Council, the five Principal 
Secretaries of State, the First Commissioner of the Treasury, the 
Chancellor of the Exchequer, the Chancellor of the Duchy of Lan¬ 
caster, and the Secretary for Scotland ; but really to be under the 
direction of none of these gentlemen, hut of its own independent 
President. 

The duties of the Board embrace, besides the collection and 
publication of all information likely to be serviceable to the 
agricultural interest and the conduct and encouragement of in¬ 
quiries and investigations touching agricultural processes and con¬ 
ditions and concerning the culture of forests, the inspection and 
subvention of schools in which instruction is given in such sub¬ 
jects, the duties hitherto attaching to the offices of the Land 
Commissioners and of the Commissioners of Works and Public 
•Buildings, the enforcement of the acts concerning contagious 
diseases among animals, and a miscellany of duties of like 
kinds. 

The Post Office is in England a subdivision of the Board of 
Trade. At its head is a Postmaster General. It controls, besides 
the usual business of a post-office department, the telegraph and 
telephone system of the country, which is owned by the govern¬ 
ment ; and it has also under its direction a useful postal savings- 
bank system. 

The war has made necessary the creation of a number of new 
ministerial posts, the most important of which are the Minister 
of Munitions of War, with Mr. Lloyd George as the first to hold 
the position, for the control and production of arms and ammuni¬ 
tion of every sort; the Minister of Blockade; the Shipping Con¬ 
troller ; the Food Controller; the President of the Air Board, and 
the Minister of Reconstruction. 

The Treasury. — The history of this department, which 
may be reckoned the most important, may serve as another typi¬ 
cal example of English departmental evolution. Originally the 
chief financial minister of the Crown was the Lord High Treas¬ 
urer, with whom was associated at an early date a Chancellor of 


THE GOVERNMENT OF GREAT BRITAIN. 


201 


the Exchequer. But in the reign of George I. the great office of 
Lord High Treasurer was, in English phrase, put permanently 
‘ into commission ’: its duties, that is, were intrusted to a hoard 
instead of to a single individual. This board was known as the 
“Lords Commissioners for executing the office of Lord High 
Treasurer,” and consisted of a First Lord of the Treasury, the 
Chancellor of the Exchequer, and three others known as Junior 
Lords. 

Evolution speedily set in, as in other similar English boards. 
That is, the board ceased to act as a board. Its functions be¬ 
came concentrated in the hands of the Chancellor of the Ex¬ 
chequer; the First Lordship, occupied almost invariably since 
1762 by the Prime Minister, gradually lost all connection, except 
that of honorary chairmanship, with the Treasury Commission, 
its occupant giving all his energies to his political functions 
(page 197) ; and the Junior Lords were left none but parliamen¬ 
tary duties. 

The Chancellor of the Exchequer, therefore, is the working 
head of the Treasury Department, and as such plays one of the 
most conspicuous and important roles in the government of the 
country. He controls the revenue and expenditure of the state, 
submitting to Parliament, in the form of an annual ‘budget/ 
careful comparisons of the sums needed for the public service and 
of the sums that may be expected to accrue from existing or pos¬ 
sible sources of revenue, together with proposals to extend or 
curtail taxation, according as there is prospect of a deficit or of a 
surplus under existing arrangements. 

The Estimates. — The various departments make up their 
own estimates; but those are subjected to a careful examination 
by the Chancellor of the Exchequer, and with him rests the pre¬ 
rogative of revising them where they may seem to admit of or to 
require revision. Thus changes in the clerical forces of the de¬ 
partments or redistributions of their work among sub-departments, 
etc., cannot, if they involve additional expense, be made without 
express approval by the Treasury. 

Mr. Gladstone twice, with characteristic energy, held, when 
Prime Minister, both the office of the First Lord of the Treasury 
and the office of Chancellor of the Exchequer, thus in effect once 


202 


THE GOVERNMENT OF GREAT BRITAIN. 


more bringing the First Lord into vital connection with his 
nominal department. 

Administrative Departments of the Privy Council. — 

Though superseded as advisory council to the Crown by the Cabi¬ 
net and deprived of all actual executive control by the virtual 
erection of its several boards into independent departments, the 
Privy Council still has one or two vital parts. Chief among 
these is The Education Department , which consists of the Lord 
President of the Council, as nominal chief, a Vice-President as 
working chief, and certain ex officio members, among them the 
Chancellor of the Exchequer and the Secretary of State for Home 
Affairs, and which is charged with the administration of the pub¬ 
lic educational system of the country. This committee preserves 
in a rather more than formal way its collegiate character. The 
important judicial duties of the Privy Council I shall speak of 
in another connection (page 219). 

The Lord Privy Seal exercises no important functions ex¬ 
cept those of keeping the great Seal of State and affixing it to 
such public documents as need its formal attestation; but the 
office is a ‘ Cabinet office.’ The lightness of its duties leaves its 
incumbent the freer for his Cabinet functions of counsel. It is a 
berth for elderly men of intellectual and political weight who 
cannot or will not undertake onerous official duties. 

The Chancellor of the Duchy of Lancaster holds an office 
whose duties (entirely legal and local) have all been delegated by 
longstanding custom to a Vice-Chancellor ; but eminent politicians 
are brought into the Cabinet through this sinecure Chancellor¬ 
ship in order that they may give the ministry the benefit of their 
advice and countenance. 

Political Under Secretaries. — There are often associated 
with the principal ministers of state certain ‘political’ Under 
Secretaries, whose function is one of very considerable impor¬ 
tance. A political Under Secretary is one who goes in or out of 
office with his party, not having a place in the Cabinet but shar¬ 
ing its fortunes in the Commons. He is parliamentary spokes¬ 
man for his chief. If the foreign minister, for instance, or any 
other member of the Cabinet, the affairs of whose department 
may be expected to call forth frequent comment or question in 


THE GOVERNMENT OF GREAT BRITAIN. 


208 


the lower House, be a member of the House of Lords, he is repre¬ 
sented in the Commons by an Under Secretary, who there speaks 
as the minister’s proxy. The representation of the ministers in 
both Houses is thus secured. (Compare page 194.) 

Administration of Scotland and Ireland. — The affairs of 
Scotland are cared for through the agency of a Lord Advocate 
for Scotland, who is the legal adviser of the government concern¬ 
ing Scotch interests, and a Secretary for Scotland who is the in¬ 
termediary between the Scotch members of Parliament and the 
ministry, and the official spokesman of the ministers regarding 
Scotch business in the House of Commons. Officially the Lord 
Advocate ranks as a subordinate of the Secretary of State for 
Home Affairs. 

The Irish executive is, formally at least, separate from the 
English, being vested in a Lord Lieutenant and a Privy Council; 
but in fact it is completely controlled by the English Cabinet 
though the Chief Secretary to the Lord Lieutenant , who is always 
a member of the House of Commons and, when Irish affairs are 
specially prominent, a member of the Cabinet also; and who, 
though in titular rank a subordinate of the Lord Lieutenant, is, 
by virtue of his relations to the Cabinet and to Parliament, in 
effect his master. 

Eor many years the agitation for Home Pule had been carried 
on but without success till the accession to power of the Liberals 
in 1906 and again in 1910. 

A Home Rule Act for Ireland was passed by the House of 
Commons in the three consecutive sessions of 1912-13, 1913, and 
1914, but was rejected by the House of Lords. Under the pro¬ 
visions of the Parliament Act it accordingly became a statute, but 
before it could be put into operation the war began and a Sus¬ 
pensory Act was passed postponing the time for putting it into 
operation for twelve months, or, if the war were not then 
ended, to such further time as should be fixed by the King in 
Council. 

The Home Rule Act provided that the executive power, vested 
in the King, should be exercised by a Lord Lieutenant, acting for 
the King, through the Irish Ministers, heads of the Irish De 
partments. 


204 


THE GOVERNMENT OF GREAT BRITAIN. 


The legislative authority is in an Irish Parliament, consisting 
of the King and two Houses — a Senate and a House of Commons. 
This Parliament has authority to “ make laws for the peace, order, 
and good government of Ireland ” subject to the plenary authority 
of the Parliament of the United Kingdom and to certain special 
limitations. 

All money bills shall originate in the Commons and may not 
be rejected or amended by the Senate. The Senate is to be 
composed of forty members, — those of the first Parliament to 
be nominated by the Imperial Cabinet and thereafter to be elected 
by the four Irish provinces, by proportional representation for a 
period of five years and not to be affected by dissolution. The 
House of Commons will consist of 164 members, elected by the 
present Parliamentary electors. In constituencies returning 
three or more members the principle of proportional representa¬ 
tion will be applied. The duration of a House of Commons is 
five years, but it may be sooner dissolved by the Lord Lieutenant 
under circumstances similar to those that would lead to a disso¬ 
lution of the House of Commons at Westminster. 

In case of conflict between the Senate and the Commons, a bill 
sent up to the Senate for a second time in the following session 
and again rejected, is to be submitted to a joint session of the 
two Houses and if adopted by a majority of those present and 
voting, it shall become a law. 

Irish representation in the House of Commons at Westminster 
is fixed at 42. When the financial arrangements between Ireland 
and the United Kingdom has been reached, additional members 
may be summoned from the Irish House of Commons in such 
numbers as will make the representation of Ireland equivalent to 
that of Great Britain on the basis of population. These members 
so summoned shall be deemed members of the House of Com¬ 
mons at Westminster for the purposes of revision of the financial 
arrangements. 

The Lord Chancellor, the only regular member of the 
Cabinet whose duties I have not yet indicated, is a judicial and 
legislative officer. His functions will be mentioned in another 
connection (page 219). 


THE GOVERNMENT OF GREAT BRITAIN. 205 

The Cabinet as Executive. —It would be a great mistake 
to suppose that, because the Cabinet is in reality a committee of 
the House of Commons, drawing all its authority from the confi¬ 
dence reposed in it by that chamber, it is a mere committee, pos¬ 
sessing no separate importance as the executive body of the 
kingdom. In a sense the ministers have inherited the ancient 
prerogatives of the Crown; and Parliament is, in a very sensible 
degree, dependent upon them for the efficacy of the part it is to 
play in governing. Almost all important legislation waits for 
their initiative, and the whole business of the Houses to a great 
extent depends upon them for its progress. They can make 
treaties, of whatever importance, with foreign countries; they 
can shape the policy of the mother country towards her colonies; 
they can take what serious steps they please with reference to 
the government of India, can place troops and naval forces at 
pleasure, can make a score of momentous moves of policy towards 
the English dependencies and towards foreign countries, — in the 
field, that is, of many of the largest interests of the Empire, — 
which may commit the country to the gravest courses of action; 
— and all without any previous consultation with Parliament, 
whom they serve. The House of Commons, in brief, can punish 
but cannot prevent them. 

Parliament: I. the House of Commons; its Original Char¬ 
acter. — “ The Parliament of the nineteenth century is, in ordi¬ 
nary speech, the House of Commons. When a minister consults 
Parliament he consults the House of Commons; when the Queen 
dissolves Parliament she dissolves the House of Commons. A 
new Parliament is merely a new House of Commons.” 1 Such 
has been the evolution of English politics. But the processes 
which worked out this result were almost five centuries long. 
During a very long period, Parliament’s first and formative 
period, the Commons held a position of distinct and natural 
subordination to the Lords, lay and spiritual; the great constitu¬ 
tional roles were played by the king and baronage. The com¬ 
moners in Parliament represented the towns, and spoke, for the 
most part, at first, only concerning the taxes they would give. 

i Spencer Walpole, The Electorate and the Legislature (English Citizen 
Series), p. 48. 


206 


THE GOVERNMENT OF GREAT BRITAIN. 


When the house of Parliament called the House of Commons 
first assumed a distinct separate existence, about the middle of 
the fourteenth century (page 187), it was by no means a homo¬ 
geneous body. It held both the knights of the shires and the 
burgesses of the towns; and it was a very long time before the 
knights forgot the doubt which had at first been felt as to which 
house they should sit with, Lords or Commons. They were men 
of consideration in their counties; the only thing in common 
between them and the men from the towns was that election, and 
not hereditary possessions or rank, was the ground of their pres¬ 
ence in Parliament. Long use, however, finally obscured such 
differences between the two groups of members in the lower 
House; their interests were soon felt to be common interests, 
because the chief questions they had a real voice in deciding were 
questions of taxation, which touched all alike. 

Historical Contrasts between County and Borough Repre¬ 
sentatives. — The main object of the Crown in making the Com¬ 
mons as representative as possible would seem to have been to 
bring the whole nation, as nearly as might be, into cooperation 
in support of the king’s government: and at first the lower House 
was a truly representative body. The knights of the shires were 
elected “ in the county court, by the common assent of the whole 
country ”; the burgesses of the towns were chosen by the borough 
freemen, a body numerous or limited according to the charter of 
each individual town, but generally sufficiently broad to include 
the better class of citizens. It was the decay of the towns and 
the narrowing of their franchises which made the Commons 
of the closing decades of the last century and the first decades of 
our own the scandalously subservient, unrepresentative Commons 
which drove the American colonies into revolt. So early as the 
reign of Henry VI., in the first half, that is, of the fifteenth 
century, the franchise was limited in the counties to freeholders 
whose landed property was of an annual value of forty shillings, 
and forty shilling freeholders were then men of means; 1 but this 
franchise remained unchanged until the parliamentary reforms of 

1 Forty shillings, it is estimated, were equivalent at that time in pur¬ 
chasing value to eighty pounds at present ($400). See J. E. T. Rogers, 
Economic Interpretation of History, p. 32. 


THE GOVERNMENT OF GREAT BRITAIN. 


207 


the present century, and tended steadily, with the advancing 
wealth of the country and the relative decrease in the value of 
the shilling, to become more inclusive and more liberal. The 
borough franchise, on the contrary, went all the time steadily 
from bad to worse. It became more and more restricted, and the 
towns which sent representatives to Parliament became, partly 
by reason of their own decay, partly by reason of the growth and 
new distribution of population in the kingdom, less and less fitted 
or entitled to represent urban England. New boroughs had been 
given representatives from time to time; but all efforts to redis¬ 
tribute representation had virtually ceased before the dawn of 
the period of that great increase of population and that immense 
development of wealth and industry which has made modern 
England what it is. The towns which returned members to the 
House of Commons were mostly in the southern counties where 
the old centres of population had been. Gradually they had lost 
importance as the weight of the nation shifted to the central and 
western counties and Liverpool, Manchester, and Birmingham 
grew up, —and not their importance only, but their inhabitants 
as well. Some fell into ruins and merged in neighboring proper¬ 
ties, whose owners pocketed both them and their parliamentary 
franchise; others, which did not so literally decay, became 
equally subject to the influence of neighbor magnates upon whom 
the voters felt more or less dependent; and at last the majority 
of seats in the Commons were virtually owned by the landed 
classes represented in the House of Lords. 

The House of Commons consisted in 1801 of 658 members, and 
of these 425 are said to have been returned “on the nomination or on 
the recommendation of 252 patrons.” It is said, also, that “309 out 
of the 513 members belonging to England and Wales owed their elec¬ 
tion to the nomination either of the Treasury or of 162 powerful indi¬ 
viduals.” 1 

Geographical Relations of Boroughs and Counties. —Borough 
populations had no part in the election of county members. The counties 
represented in Parliament were rural areas, exclusive of the towns. Thus 
the county of Derby was, for the purposes of parliamentary representation, 
the county of Derby minus its boroughs. 


i Walpoie, p. 55. 


208 


THE GOVERNMENT OE GREAT BRITAIN. 


Parliamentary Reform. —It was to remedy this condition 
that the reforms since the beginning of the nineteenth century 
were undertaken. Those reforms have made the House of Com¬ 
mons truly representative and national: and in making it national 
have made it dominant. In 1832 a wholesale redistribution of 
seats was accomplished, and a complete reformation of the fran¬ 
chise. The decayed towns were deprived of their members, and 
the new centres of population were accorded adequate repre¬ 
sentation. The right to vote in the countries was extended from 
those who owned freeholds to those who held property on lease 
and '■jhose who held copyhold estates, 1 and to tenants whose hold¬ 
ings were of the clear annual value of fifty pounds. The borough 
franchise was put upon the uniform basis of householders whose 
houses were worth not less than ten pounds a year. This was 
putting representation into the hands of the middle, well-to-do 
classes ; and with them it remained until 1867. In 1867 another 
redistribution of seats was effected, which increased the number 
of Scotch members from fifty-four to sixty and made other impor¬ 
tant readjustments of representation. The franchise was at the 
same time very greatly widened. In the boroughs all house¬ 
holders and every lodger whose lodgings cost him ten pounds 
annually were given the right to vote ; and in the counties, be¬ 
sides every forty shilling freeholder, every copyholder and lease¬ 
holder whose holding was of the annual value of five pounds, and 
every householder whose rent was not less than twelve pounds 
a year. Thus representation stood for almost twenty years. 
Finally, in 1884, the qualifications for voters in the counties were 
made the same as the qualifications fixed for borough electors by 
the law of 1867, and over two millions and a half of voters were 
thus added to the active citizenship of the country. 

In 1885 another great Redistribution Act was passed, which 
merged eighty-one English, two Scotch, and twenty-two Irish 
boroughs in the counties in which they lie, for purposes of repre¬ 
sentation ; gave additional members to fourteen English, three 

1 Copyhold estates are estates held by the custom of the manor in which 
they lie, a custom once evidenced by a ‘copy’ of the rolls of the Manor 
Court. 


THE GOVERNMENT OF GREAT BRITAIN. 


209 


Scotch, and two Irish boroughs ; and created thirty-three new 
urban constituencies. The greater towns which returned several 
members were cut up into single-member districts, and a like ar¬ 
rangement was effected in the counties, which were divided into 
electoral districts to each of which a single representative was 
assigned. 1 These changes were accompanied by an increase of 
twelve in the total number of members. Through the redistribu¬ 
tion of seats in 1832 and 1867 the number had remained 658; in 
1885 it was raised to 670. 

Parliamentary Franchise. — The last and most far-reach¬ 
ing extension of the suffrage, through the Representation of the 
People Act of 1918, swept away all special qualifications existing 
at the time of its passage. Neither owners, lodgers, nor freemen 
are to be registered as such and the principle of woman suffrage 
has received wide recognition. Universal suffrage for men and 
women has been largely achieved. 

By this Act the franchise was extended to all male subjects 
of full age, not subject to any legal incapacity, who have resided 
in a constituency for a period of six months terminable either on 
July 15th or January 15th in any year. This period is reduced 
to one month for discharged soldiers. Men who have the resi¬ 
dential qualification and are also occupiers as owners or tenants 
of land on premises of the yearly value of not less than £10, 
are entitled to a second vote, provided the land or premises be 
used for the purposes of a business, trade, or profession and that 
the qualification is not in the same constituency as that in which 
they have their residence. 

All men of full age and not under any legal incapacity who 
have received a degree (other than an honorary degree) from a 
University and all women thirty years of age who would be 
entitled to vote for a University if she were a man are entitled to 
vote for the University or group of Universities formed under 
the Act. This vote may be in addition to the residential vote, 
but no person may have more than two votes. Women of thirty 
years of age and not subject to any legal incapacity, who are 

i This was establishing what the French, as we have seen (page 222), 
would call scrutin cTarrondissement. 


210 


THE GOVERNMENT OF GREAT BRITAIN. 


entitled to be local government electors, in respect of the occupa¬ 
tion, as owners or tenants, of land or premises of the value of 
£5 per annum or of a dwelling house, and women whose husbands 
are electors in a local government area for lands or premises of 
the value of £5 per annum or of a dwelling house, have received 
the franchise. It is estimated that the vote has thereby been 
extended to six million women and that the total number of 
electors under the new Act will be doubled. 

A new redistribution of seats, based on one member for every 
70,000 people, was also included, with a special act for Ireland, 
so that the new House of Commons will be composed of 707 
members. In the new House of Commons England will have 
492 members, Wales 36, Scotland 74, and Ireland 105, 372 sitting 
for counties, 320 for boroughs, and 15 for universities. All elec¬ 
tions will be held on the same day; the cost of elections is 
cheapened and registration is simplified and put in charge of a 
responsible public official in every constituency. 

Election and Term of the Commons. —Members of the 
House of Commons are elected, by secret ballot, for a term of 
five years. 1 Any male citizen is eligible for election except 
priests and deacons of the Church of England, ministers of the 
Church of Scotland, Homan Catholic priests, and sheriffs and 
other returning officers, — and except, also, English and Scotch 
peers. Irish peers not elected to the Lords are eligible and have 
often sat in the House. 2 The persons thus excepted, — all save 
the peers, at least, — can neither sit nor vote. 

As a matter of fact no House of Commons previous to the 
present one has ever lived its full term. A dissolution, for the 
purpose of a fresh appeal to the constituencies, has always cut 
it off before its statutory time. The average duration of Parlia¬ 
ments has been less than four years. The longest Parliament of 
the nineteenth century (elected in 1820) lived six years, one 
month, and twelve days. The present Parliament has prolonged 
its own life to avoid a general election during the war and has 
been in existence since 1911. 

1 Until 1911 the term was seven years. 

2 Lord Palmerston, for example, was an Irish peer. 


THE GOVERNMENT OF GREAT BRITAIN. 


211 


There is no property qualification for election to the House 
now, as there was formally; and the members receive £ 400 a 
year for their services. 

Summons, Electoral Writ, Prorogation. —Ho standing 
statutes govern the time for electing Parliaments. Parliament 
assembles upon summons from the Crown (which, like all other 
acts of the Sovereign, now really emanates from the ministers) ; 
and the time for electing members is set by writs addressed 
to the sheriffs and the mayors. Parliament is also 1 pro¬ 
rogued’ (adjourned for the session) by the Sovereign (that is, 
the Cabinet); and assembles again, after recess, by special 
summons. 

The summons for a new Parliament must be issued at least 
thirty-five days beforq the day set for its assembling; the 
summons to a prorogued Parliament at least fourteen days before¬ 
hand. It is now the invariable custom to assemble Parliament 
once every year about the middle of February, and to keep it in 
session from that time till about the middle of August. 

If a seat fall vacant during a session, a writ is issued for an 
election to fill it upon motion of the House itself; if a vacancy 
occur during a recess, the writ is issued at the instance of the 
Speaker of the House. 

Since 1867 the duration of Parliament has not been liable to 
be affected by a demise of the Crown; before 1695 Parliament 
died with the monarch. In that year it was enacted that Parlia¬ 
ment should last for six months after the demise of the Crown, 
if not sooner dissolved by the new Sovereign. Parliament, it is 
now provided, must assemble immediately upon the death of the 
Sovereign. If the Sovereign’s death take place after a dissolu¬ 
tion and before the day fixed for the convening of the new Par¬ 
liament, the old Parliament is to come together for six months, 
if necessary, but for no longer term. 

Organization of the House. — The Commons elect their 
own Speaker (Spokesman) ; their clerk and sergeant-at-arms are 
appointed by the Crown. The business of the House is, as we 
have seen (page 197), quite absolutely under the direction of its 
great committee, the Cabinet. Certain days of the week are set 


212 


THE GOVERNMENT OF GREAT BRITAIN. 


apart by the rules for the consideration of measures introduced 
by private members, but most of the time of the House is devoted 
to ‘ government bills/ 1 The majority put themselves in the hands 
of their party leaders, the ministers, and the great contests of 
the session are between the minority on one side of the chamber 
and the ministerial party, or majority, on the other side. 

Down the centre of the hall in which the House sits runs a 
very broad aisle. The Speaker’s seat stands, upon an elevated 
place, at the farther end of this aisle, and below it are the seats 
and tables of the clerks and a great table stretching some distance 
down the aisle, for the reception of the Sergeant’s mace and 
various books, petition boxes, and papers. The benches on either 
side of the aisle face each other. Those which rise, in tiers, to 
the Speaker’s right are occupied by the majority, the Cabinet 
ministers, their leaders, sitting on the front bench by the great 
table. This front bench is accordingly called the ‘ Treasury 
Bench,’ — the Treasury being the leading Cabinet office. On the 
benches which rise to the Speaker’s left sit the minority, their 
leaders also (the 1 leaders of the Opposition,’ — the minority 
being expected, generally with reason, to be opposed to all minis¬ 
terial proposals) on the front bench by the table, and so directly 
facing the ministers, only the table intervening. 

The House of Lords: its Composition. — The House 
of Lords consisted on April 4th, 1918, of six hundred and fifteen 
English hereditary peers (Dukes, Marquises, Earls, Viscounts, 
Barons); the two archbishops and twenty-four bishops, holding 
their seats by virtue of their offices; sixteen Scottish representa¬ 
tive peers, elected by the whole body of Scottish peers to sit for 
the term of Parliament; twenty-seven Irish peers, elected by 
the peers of Ireland to sit for life 2 ; and seven judicial members 
known as Lords of Appeal in Ordinary (pages 216, 218, 219), 
sitting as life-peers only, by virtue of their office. 

1 Due to the war, the Government now possesses the whole time of the 
House except an hour allowed to members for general discussion on the 
motion for adjournment at each sitting. 

2 Earl Curzon of Kedleston, the 28th Irish Representative Peer, is also a 
peer of the United Kingdom. 


THE GOVERNMENT OF GREAT BRITAIN. 


213 


There is no necessary limitation to the number of hereditary 
English peers. Peers can be created at will by the Crown (that 
is, by the ministry), and their creation is in fact frequent. Two 
hundred and thirty-one peers have been created since 1900. The 
number of Scottish and Irish peers is limited by statute. 

The House of Lords is summoned to its sessions when the 
House of Commons is, and the two must always be summoned 
together. 

Function of the House of Lords in Legislation. — The 

House of Lords was until 1911, in legal theory, coequal in all 
respects with the House of Commons; but, in fact, its authority 
was politically very inferior. By the Parliament Act of 1911, 
this actual inferiority was given statutory recognition and the 
House of Lords became thereby a subordinate legislative 
chamber. 

In the elections of 1906 the Liberals won an overwhelming 
victory and under the leadership of Lloyd George as Chancellor 
of the Exchequer radical changes in the system of taxation were 
proposed in the Finance Bill of 1909. When this Bill went to 
the Lords, it was rejected though the practice had been so long 
observed as to be regarded as one of the conventions of the con¬ 
stitution that the Lords must accept the financial legislation 
passed by the Commons. The House was dissolved and an appeal 
to the people was taken, with the result that the Liberals were 
returned to power but with a reduced majority. The Finance 
Bill was reintroduced and successfully passed. But the Liberals 
were determined that the powers of the Lords should be limited 
and a series of resolutions were introduced and passed in the 
Commons to the effect (1) that the House of Lords should by 
law be deprived of the power of rejecting or amending a money 
bill; (2) that the power of the Lords to veto other bills should 
be limited by law; and (3) that the duration of a parliament 
should be limited to a maximum period of five years. The House 
of Lords itself took up the question of its own reform and various 
proposals were introduced, looking, however, rather to a change 
in the method of constituting that body rather than to a change 
in its powers. These resolutions adopted by the Lords recog- 


214 


THE GOVERNMENT OF GREAT BRITAIN. 


nized tlie right of the Commons with respect to money bills of a 
purely financial character; provided a plan for determining 
whether or not a bill was of this Character by a committee of the 
two Houses in which the Speaker of the House of Commons 
should have the deciding vote; that with respect to other bills 
about which the Houses might differ in two successive sessions 
with an interval of not less than a year, the matter should be 
settled at a joint sitting of the two Houses unless it referred to 
a matter of grave importance, in which case it should be sub¬ 
mitted to the people by referendum; and that the hereditary 
principle should not be the sole basis of membership in the 
Lords. 

A fresh appeal to the people was taken in December, 1910, 
and again the Liberals were returned to power and the Parliament 
Bill was reintroduced without change and passed with only minor 
amendment. The Commons claimed that the people had ap¬ 
proved of the Bill at the general election, and when it went to 
the Lords and was there amended, the ministry let it be known 
that it would accept no compromise and that the Bill would be 
passed if enough new peers must be created to secure a majority. 
Faced with this threat the Lords yielded and the Bill was passed 
as approved by the House. Thus ended one of the most momen¬ 
tous struggles in English constitutional history, and as a result the 
House of Commons is practically supreme. The Lords have 
retained only a right of criticism and a suspensive veto. 

The Parliament Act of 1911. — Both houses had accepted 
the principle of reforming the House of Lords by substituting a 
popular for the hereditary basis, and this principle was declared 
in the preamble to the Act, but as yet no steps have been taken 
to put such a reform into operation. The Lords remain an heredi¬ 
tary body but with greatly restricted powers. 

In the first place the power of the Lords over Money Bills 
has been entirely taken away. If a Money Bill which has been 
passed by the House of Commons, and sent up to the House of 
Lords at least one month before the end of the session, is not 
passed by the House of Lords without amendment within one 
month after it has been so sent up, the Bill shall, unless the 


THE GOVERNMENT OF GREAT BRITAIN. 


215 


House of Commons direct to the contrary, be presented to his 
Majesty and become an Act of Parliament on the royal assent 
being signified, notwithstanding that the House of Lords has 
not consented to the Bill. The decision as to what is a Money 
Bill under the terms of the Act rests with the Speaker of the 
House of Commons, who shall indorse thereon his certificate to 
that effect. 

In the second place if any Public Bill other than a Money Bill, 
or a Bill containing any provisions to extend the maximum 
duration of Parliament beyond five years, is passed by the House 
of Commons in three successive sessions, whether of the same 
Parliament or not, and is rejected by the Lords in each of those 
sessions, the Bill shall, unless the House of Commons directs to 
the contrary, be presented to his Majesty and shall become an 
Act of Parliament on receiving the Boyal Assent, notwithstand¬ 
ing that the House of Lords has not consented to the Bill. A 
period of two years must elapse between the date of the second 
reading of the Bill in the first of the three successive sessions of 
the House of Commons and its passage in the third session. The 
Speaker shall likewise put his certificate upon Bills of this char¬ 
acter to the effect that all the provisions of the Parliament Act 
have been complied with. 

The certificate of the Speaker shall in both cases be conclusive 
and shall not be questioned in any court of law. By this Act 
the time fixed for the maximum duration of Parliament was five 
years. 

The House of Lords as a Supreme Court. — The House of 
Lords is still, however, in fact as well as in form, the supreme 
court of appeal in England, though it has long since ceased to 
exercise its judicial functions (inherited from the Great Council 
of Norman times) as a body. Those functions are now always 
exercised by the Lord Chancellor, who is ex officio president of 
the House of Lords, and four Lords of Appeal in Ordinary, who 
are learned judges appointed as life peers, specially to perform 
this duty. These special ‘ Law Lords ’ are assisted from time to 
time by other lords who have served as judges of the higher 
courts or who are specially learned in the law. 


216 


THE GOVERNMENT OF GREAT BRITAIN. 


Legislation, therefore, is controlled by the House of Com¬ 
mons, the interpretation of the law by the judicial members 
of the House of Lords. The House of Lords has a limited share 
with the popular chamber in the right of law-making, but cannot 
assert that right further than to cause delay. The Sovereign has 
theoretically the right to negative legislation; but the Sovereign 
is in the hands of the ministers, and the ministers are in the 
hands of the Commons ; and legislation is never negatived. 

The Constitution of England consists of law and precedent. 
She has great documents like Magna Charta at the foundation 
of her institutions ; but Magna Charta was only a royal ordi¬ 
nance. She has great laws like the Bill of Bights at the centre 
of her political system; but the Bill of Rights was only an 
act of Parliament. She has no written constitution, and Par¬ 
liament may, in theory, change the whole structure and principle 
of her institutions by mere Bill. But in fact Parliament dare 
not go faster than public opinion: and public opinion in England 
is steadily and powerfully conservative. 

The Courts of Law. — The Administration of justice has 
always been greatly centralized in England. From a very early 
day judges of the king’s court have ‘gone on circuit,’ holding 
their assizes (sittings) in various parts of the country, in order 
to save suitors the vexation and expense of haling their adver¬ 
saries always before the courts in London. But these circuit 
judges travelled from place to place under special commissions 
from the central authorities of the state, and had no permanent 
connections with the counties in which their assizes were held: 
they came out from London, were controlled from London, and, 
their circuit work done, returned to London. It was, moreover, 
generally only the three courts of Common Law (the Court of 
King’s Bench, the Court of Common Pleas, and the Court of 
Exchequer) that sent their judges on circuit; the great, over¬ 
shadowing Court of Chancery, which arrogated so wide a juris¬ 
diction to itself, drew all its suitors to its own chambers in West¬ 
minster. 

The only thing lacking to perfect the centralization was a 
greater uniformity of organization and a less haphazard dis- 


THE GOVERNMENT OF GREAT BRITAIN. 


217 


tribution of jurisdiction among the various courts. This lack 
was supplied by a great Judicature Act passed in 1873. By that 
Act (which went into force on the 1st November, 1875), and 
subsequent additional legislation extending to 1879, the courts 
of law, which had grown, as we have seen (page 185), out of that 
once single body, the ancient Permanent Council of the Norman 
and Plantagenet kings, were at last reintegrated, made up to¬ 
gether into a coordinated whole. 

Judicial Reform: the Reorganization of 1873-1879. — These 
measures of reorganization and unification had been preceded, in 
1846, by a certain degree of decentralization. Certain so-called 
County Courts were than created, which are local, not peripatetic 
Westminster, tribunals, and which have to a considerable extent 
absorbed the assize business, though their function, theoretically, 
is only to assist, not to supplant, the assizes. Now, therefore, the 
general outlines of the judicial system are these. The general 
courts of the kingdom are combined under the name, Supreme 
Court of Judicature. This court is divided into two parts, which 
are really two quite distinct courts: namely, the High Court of 
Justice and the Court of Appeal; while over both, as the court of 
last resort, still stands the House of Lords. The High Court 
of Justice acts in three divisions, a Chancery Division, a King’s 
Bench Division, and a Probate, Divorce, and Admiralty Division ; 
and these three divisions constitute the ordinary courts of law, 
inheriting the jurisdictions suggested by their names. From 
them an appeal lies to the Court of Appeal; from the Court of 
Appeal to the House of Lords. The County Courts stand related 
to the system as the Assizes do. 

“ The Chancery Division has five judges besides its presi¬ 
dent, the Chancellor; the Queen’s Bench Division has fifteen 
judges, of whom one, the Lord Chief Justice, is its president; 
the Probate, Divorce, and Admiralty Division has but. two judges, 
of whom one presides over the other.” This arrangement into 
divisions is a mere matter of convenience; no very strict dis¬ 
tinctions as to jurisdiction are preserved; and any changes that 
the judges think desirable may be made by an Order in Council. 
Thus an Exchequer Division and a Common Pleas division, which 


218 


THE GOVERNMENT OF GREAT BRITAIN. 


at first existed, in preservation of the old lines of organization, 
were abolished by such an Order in December, 1880. The 
judges assigned to the various Divisions do not necessarily or 
often sit together. Cases are generally heard before only one 
judge; so that the High Court may be said to have the effec¬ 
tive capacity of twenty-three courts, its total number of 
judges being twenty-three. Only when hearing appeals from 
inferior tribunals, or discharging some other function differ¬ 
ent from the ordinary trial of cases, must two or more judges 
sit together. 

The Court of Appeals may hear appeals on questions both 
of law and of fact. It consists of the Master of Dolls and five 
Lords Justices, who may be said to constitute a permanent and 
separate bench, and of the presidents of the three Divisions of 
the High Court, who may be called its occasional members. 
Since 1891 Ex-Chancellors are ex officio members, though they do 
not ordinarily sit. Three judges are necessary to exercise its 
powers, and. in practice, its six permanent members divide the 
work, holding the court in two independent sections. 

The House of Lords may sit, when acting as a court, when 
Parliament is not in session, after a prorogation, that is, or even 
after a dissolution : for the House of Lords when sitting as a court 
is like its legislative self only in its modes of procedure. In all 
other respects it is totally unlike the body which obeys the House 
of Commons 'n law-making. It is constituted always, as a court, 
of the Lord Ci ancellor and at least two of the Lords of Appeal in 
Ordinary of whom I have spoken (page 212) ; only sometimes are 
there added to these a third Lord of Appeal in Ordinary, an ex- 
Lord Chancellor, or one or more of such judges or ex-judges of 
the higher courts as may have found their way to peerages. 
Other members of the House never attend; or, attending, 
never vote. 

A Judicial Committee of the Privy Council, of which also 
the Lord Chancellor is a member, and which now consists mainly 
of the same Lords of Appeal in Ordinary who act in judicial 
matters as the House of Lords, constitutes a court of last resort 


THE GOVERNMENT OP GREAT BRITAIN. 


219 


for India, the Colonies, the Channel Islands, and the Isle of Man, 
as well as, within certain limits, as a court of appeal from the 
Probate, Divorce, and Admiralty Division of the High Court of 
Justice. 

The Lord Chancellor is the most notable officer in the whole 
system. He is president of the House of Lords, of the Court of 
Appeal, of the High Court of Justice, and of the Chancery Divi¬ 
sion of the High Court, and he is a member of the Judicial Com¬ 
mittee of the Privy Council; and he actually sits in all of these 
except the High Court, — in the House of Lords and the Privy 
Council always, in the Court of Appeal often. More singular 
still, he is the political officer of the law : he is a member always 
of the Cabinet, and, like the other members, belongs to a party, 
and goes in or out of office according to the favor of the House of 
Commons, exercising while in office, in some sense, the functions 
of a Minister of Civil Justice. 1 

Civil Cases are heard either by judges of the High Court 
in Lqndon, by judges of that court sitting on circuit in the various 
1 assize towns ’ of the county, of which there is always at least one 
for each county, or by the County Courts created in 1846, which 
differ from the old county courts, long since decayed and now de¬ 
prived of all judicial functions, both in their organization and in 
their duties. They consist, not of the sheriff and all the freemen of 
the shire, but of single judges, holding their offices during good 
behavior, assisted by permanent ministerial officers, and exercising 
their jurisdiction not over counties but in districts much smaller 
than the counties. They are called county courts only by way of 
preserving an ancient and respected name. 

The County Courts have jurisdiction in all cases of debt or dam¬ 
age where the sum claimed does not exceed £50, and in certain equity cases 
where not more than £500 is involved,— except that cases of slander, libel, 
seduction, and breach of promise to marry, as well as all matrimonial cases, 
are withheld from them. At least, such is their jurisdiction in rough out¬ 
line. A full account would involve many details; for it has been the 
tendency of all recent judicial legislation in England to give more and more 

1 Maitland, p. 68. 


220 


THE GOVERNMENT OF GREAT BRITAIN. 


business, even of the more important kind, to these Courts. Their normal 
importance may be judged from the fact, stated by Mr. Maitland, that 
“most of the contentious litigation in England is about smaller sums 
than” £50. 

A judge of the High Court may send down to a county court, upon 
the application of either party, cases of contract in which the sum claimed 
does not exceed £100. Any case, however small the pecuniary claim in¬ 
volved, may be removed from the county to the High Court if the judge of 
the county court will certify that important principles of law are likely to 
arise in it, or if the High Court or any judge thereof deems it desirable 
that it should be removed. Appeals from a county court to the High 
Court are forbidden in most cases in which less than £20 is involved. 

The county court system rests upon the basis of a division of the 
country into fifty-six circuits. All but one or two of these include several 
‘ districts ’ —the districts numbering about 500. Each district has its own 
separate court, with its own offices, registrar, etc.; but the judges are ap¬ 
pointed for the circuits, — one for each circuit. They are appointed by 
the Lord Chancellor from barristers of seven years’ standing. 1 

Juries are falling more and more into disuse in England in civil 
cases. In all the more important causes, outside the Chancery Division, 
whose rule of action, like that of the old Chancery Court, is ‘ no jury,’ a 
jury may be impanelled at the desire of either party ; but many litigants 
now prefer to do without, — especially in the County Courts, where both 
the facts and the law are in a large majority of the cases passed upon by 
the judge alone, without the assistance of the jury of five which might 
in these courts be summoned in all cases of above £20 value. 

Criminal Cases are tried either before the county Justices 
of the Peace, who are unpaid officers appointed by the Chancellor 
upon the recommendation of the Lords Lieutenant of the Coun¬ 
ties; before borough Justices, who are paid judges much like 
all others ; or before judges of the High Court on circuit. The 
jurisdiction of the Justices may be said to include all but the 
gravest offences, all but those, namely, which are punishable by 
death or by penal servitude, and except, also, perjury, forgery, 
bribery, and libel. There are many Justices for each county, 
there being no legal limit to their number; and they exercise 
their more important functions at general Quarter Sessions, at 
general sessions, that is, held four times yearly. The criminal 
assizes of the High Court also are held four times a year. All 

1 The various Acts affecting the County Courts were amended and consoli¬ 
dated by the County Courts Act, 1888. 


THE GOVERNMENT OF GREAT BRITAIN. 221 

criminal cases, except those of the pettiest character, such aa 
police cases, are tried before juries. 

“ About one-half of the criminal trials,” it is stated, 1 “ take place 
at county sessions, about one-fourth at borough sessions, the rest at Assizes 
or the Central Criminal Court,” the great criminal court of London. 

Quarter and Petty Sessions. — For the exercise of all their 
more important judicial functions the Justices meet quarterly, in Quarter 
Sessions ; but for minor duties in which it is not necessary for more than 
two Justices to join, there are numerous Petty Sessions held at various 
points in the counties. Each county is divided by its Quarter Sessions 
into petty sessional districts , and every neighborhood is given thus its own 
court of Petty Sessions, — from which in almost all cases an appeal lies to 
Quarter Sessions. Thus the important function of licensing (page 233) is 
exercised by Petty Sessions, subject to appeal to the whole bench of 
Justices. 

The Justices of the Peace were, as we shall see more particu¬ 
larly in another connection (pages 226-227), the general governmental 
authorities of the counties until the reform of local government effected 
in 1888, exercising functions of the most various, multifarious, and influ¬ 
ential sort. They are generally country gentlemen of high standing in 
their counties, and serve, as already stated, without pay. They are 
appointed, practically, for life. The ‘Commission of the Peace,’—the 
commissioning, that is, of Justices of the Peace, — originated in the four¬ 
teenth century, and has had a long history of interesting development. 
Considering the somewhat autocratic nature of the office of Justice, it 
has been, on the whole, exercised with great wisdom and public spirit, 
and during most periods with extraordinary moderation, industry, and 
effectiveness. 

The duties which Americans associate with the office of Justice of 
the Peace are exercised in England, not by the bench of Justices sitting in 
Quarter Sessions, — they then constitute, as we have seen, a criminal court 
of very extensive jurisdiction, —but by the Justices singly, sitting either 
formally or informally. A single Justice may conduct the preliminary 
examination of a person charged with crime, and may commit for trial if 
reasonable ground of suspicion be proved. A single Justice can also issue 
search warrants to the constabulary for the detection of crime, etc. 

Police. — The police force, or, in more English phrase, 
the constabulary, of the kingdom is overseen from London by the 
Home Office, which makes all general rules as to discipline, pay, 
etc., appoints royal inspectors, and determines, under the Treas¬ 
ury, the amount of state aid to be given to the support of the 

1 Maitland, p. 86. 


222 


THE GOVERNMENT OF GREAT BRITAIN. 


forces; but all the actual administration of the system is under* 
taken by the local authorities. In the Counties a joint Com¬ 
mittee of Quarter Sessions and the County Council appoint the 
Chief Constable, who appoints and governs the force with powers 
of summary dismissal and punishment, but who acts in all things 
subject to the governing control of the Committee (page 235). In 
those towns which undertake to maintain a force distinct from 
that of the County the Head Constable is chosen by the town 
authorities and the direction of the force is superintended by a 
‘Watch Committee ’ of the Town Council. London, which em¬ 
ploys, it is stated, one-third of the entire police force of the 
kingdom, has been given a special, exceptional system of its own. 
The city police are governed by a Commissioner and two Assist¬ 
ant Commissioners who are appointed by the Home Secretary and 
serve directly under his authority. 

The police throughout the country are given something like mili¬ 
tary drill and training, the organization being made as perfect, the training 
as thorough, and the discipline as effective as possible. Ex-army officers 
are preferred for the office of Chief Constable. 

II. Local Government. 

Complex Character of Local Government in England. — 

The subject of local government in England is one of extreme 
complexity and, therefore, for my present purpose of brief de¬ 
scription, one of extreme difficulty. So perfectly unsystematic, 
indeed, are the provisions of English law in this field that most 
of the writers who have undertaken to expound them, — even to 
English readers, — have seemed to derive a certain zest from the 
despairful nature of their task, — a sort of forlorn-hope enthusi¬ 
asm. The institutions of local government in England have 
grown piece by piece as other English institutions have, and not 
according to any complete or logical plan of statutory construc¬ 
tion. They are patch-work, not symmetrical net-work, and the 
patches are of all sizes, shapes, and materials. 

“For almost every new administrative function,” complains one 
writer on the subject, “the Legislature has provided a new area contain¬ 
ing a new constituency, who by a new method of election choose candh 


THE GOVERNMENT OF GREAT BRITAIN. 


223 


dates who satisfy a new qualification, to sit upon a new board, during a 
new term, to levy a new rate [tax], and to spend a good deal of the new 
revenues in paying new officers and erecting new buildings.” 1 

It has been the habit of English legislators, instead of 
perfecting, enlarging, or adapting old machinery, to create all 
sorts of new pieces of machinery with little or no regard to their 
fitness to be combined with the old or with each other. The 
Local Government Act of 1888 represents the first deliberate at¬ 
tempt at systematization; but even that Act did not effect system, 
and itself introduced additional elements of confusion by first 
adopting another Act (the Municipal Corporations Act of 1882) 
as its basis and then excepting particular provisions of that Act 
and itself substituting others in respect, not of all, but of some 
of the local administrative bodies meant to be governed by it. 
The supplementary legislation of 1894 introduced some further 
elements of consistent system; but did not after all very much 
simplify existing methods. It would seem as logical a plan of 
description as any, therefore, to discuss the older divisions and 
instrumentalities first and then treat afterwards of more recent 
legislative creations as of modifications, of however haphazard a 
kind, of these. 

General Characterization.—In general terms, then, it 
may be said, that throughout almost the whole of English history, 
only the very earliest periods excepted, counties and towns have 
been the principal units of local government; that the parishes 
into which the counties have been time out of mind divided, 
though at one time of very great importance as administrative 
centres, were in course of time in great part swallowed up by 
feudal jurisdictions, and now retain only a certain minor part in 
the function, once exclusively their own, of caring for the poor; 
and that this ancient framework of counties, towns, and parishes 
has, of late years, been extensively overlaid and in large part 
obscured: (a) by the combination (1834) of parishes into 1 Unions ’ 
made up quite irrespective of county boundaries and charged not 
only with the immemorial parish duty of maintaining the poor but 
often with sanitary regulation also and school superintendence, 

1 Local Administration (Imperial Parliament Series), by Win. Rathbone, 
Albert Pell, and F. C. Montague, p. 14. 


224 


THE GOVERNMENT OF GREAT BRITAIN. 


and generally with a miscellany of other functions; ( b ) by the 
creation of new districts for the care of highways; (c) by ne'tf 
varieties of town and semi-town government; and ( d ) by the sub¬ 
division of the counties (1889) into new administrative ‘districts/ 
charged with general administrative functions. The only dis¬ 
tinction persistent enough to serve as a basis for any classifica¬ 
tion of the areas and functions of the local administration thus 
constructed is the distinction between Rural Administration and 
Urban Administration, —a distinction now in part destroyed by 
the Act of 1888; and of these two divisions of administration 
almost the only general remark which it seems safe to venture 
is, that Rural Administration has hitherto rested much more 
broadly than does Urban on old historical foundations. 

The County: its Historical Rootage.—For the County, 
with its influential Justices of the Peace and its wide adminis¬ 
trative activities, is still the vital centre of rural government in 
England; and the Counties are in a sense older than the kingdom 
itself. Many of them, as we have seen (page 180), represent in 
their areas, though of course no longer in the nature of their 
government, separate Saxon kingdoms of the Heptarchy times. 
When they were united under a single throne they retained (it 
would appear) their one-time king and his descendants in the 
elder male line as their eoldormen. They retained also their old 
general council, in which eoldorman and bishop presided, though 
there was added presently to these presidents of the older order 
of things another official, of the new order, the king’s officer, the 
Sheriff. To this council went up, as was of old the wont, the 
priest, the reeve, and four select men from every township, 
together with the customary delegates from the ‘hundreds.’ 

Of course the Counties no longer retain these antique 
forms of government; scarcely a vestige of them now remains. 
But the old forms gave way to the forms of the present by no 
sudden or violent changes, and some of the organs of county gov¬ 
ernment now in existence could adduce plausible proof of their 
descent from the manly, vigorous, self-centred Saxon institutions 
of the ancient time. 

Early Evolution of the County Organs. — In Norman 
times the eoldorman’s office languished in the shadow of the Sher« 


THE GOVERNMENT OF GREAT BRITAIN. 


225 


iff’s great authority. The spiritual and temporal courts were 
separated, too, and the bishop withdrew in large measure from 
official participation in local political functions. The County 
Court became practically the Sheriff’s Court; its suitors the free¬ 
holders. Its functions were, however, still considerable: it chose 
the officers who assessed the taxes; it was the medium of the 
Sheriff’s military administration; and it was still the principal 
source of justice. But its duties were not slow to decay. As a 
Court it was speedily handed over to the king’s itinerant justices, 
who held their assizes in it and heard all important cases, all 
‘pleas of the Crown.’ Its financial functions became more and 
more exclusively the personal functions of the Sheriffs, who were 
commonly great barons, who managed in some instances for a 
little while to make their office hereditary, and who contrived 
oftentimes to line their own pockets with the proceeds of the 
taxes: for great barons who were sheriffs were sometimes also 
officials of the Exchequer, and as such audited their own accounts. 
The local courts at last became merely the instruments of the 
Sheriffs and of the royal judges. 

Decline of the Sheriff’s Powers. — It was the overbearing 
power of the Sheriffs, thus developed, that led to the great 
changes which were to produce the county government of our own 
day. The interests alike of the Court and of the people became 
enlisted against them. The first step towards displacing them 
was taken when the royal justices were sent on circuit. Next, 
in 1170, under Henry II. ’s capable direction, the great baronial 
sheriffs were tried for malfeasance in office, and, though influen¬ 
tial enough to escape formal conviction, were not influential 
enough to retain their offices. They were dismissed, and re¬ 
placed by Exchequer officials directly dependent upon the Crown. 
In 1194, in the next reign, it was arranged that certain ‘custo¬ 
dians of pleas of the Crown ’ should be elected in the counties, to 
the further ousting of the Sheriffs from their old-time judicial 
prerogatives. Then came Magna Charta (1215) and forbade all 
participation by Sheriffs in the administration of the king’s jus¬ 
tice. Finally the tenure of the office of Sheriff, which was by that 
time little more than the chief place in the militia of the county 
and the chief ministerial office in connection with the administra* 


226 


THE GOVERNMENT OF GREAT BRITAIN. 


tion of justice, was limited to one year. The pulling down of 
the old system was complete; fresh construction had already 
become necessary. 

Justices of the Peace. —The reconstruction was effected 
through the appointment of ‘Justices of the Peace.’ The expe¬ 
dient of ‘custodians of pleas of the Crown 9 (custodies placitorum 
coronce) elected in County Court, as substitutes for the Sheriff in 
the exercise of sundry important functions of local justice, had 
proved unsatisfactory. They, too, like the Sheriffs, were curtly 
forbidden by Magna Charta to hold any pleas of the Crown; and 
they speedily became only the coroners we know (‘crowners’ 
Shakspere’s grave-digger in Hamlet very appropriately calls 
them), whose chief function it is to conduct the preliminary in¬ 
vestigation concerning every case of sudden death from an un¬ 
known cause. Better success attended the experiment of Justices 
of the Peace. At first ‘Conservators ’ of the peace merely, these 
officers became, by a statute passed in 1360, in the reign of Ed¬ 
ward III., justices also, intrusted with a certain jurisdiction over 
criminal cases, to the supplanting of the Sheriff in the last of his 
judicial functions, his right, namely, to pass judgment in his 
tourn or petty court on police cases, — to apply the discipline of 
enforced order to small offences against the public peace. 

Henceforth, as it turned out, the process of providing 
ways of local government was simple enough, as legislators chose 
to conduct it. It consisted simply in charging the Justices of 
the Peace with the doing of everything that was necessary to be 
done. Slowly, piece by piece, their duties and prerogatives were 
added to, till the Justices had become immeasurably the most 
important functionaries of local government, combining in their 
comprehensive official characters almost every judicial and ad 
ministrative power not exercised from London. Not till the 
passage of the Local Government Act of 1888 were they relegated 
to their older and more characteristic judicial functions, and their 
administrative and financial powers transferred to another body, 
the newly created County Council. 

Functions of Justices of the Peace prior to Recent Reforms. 

— The Justice of the Peace has been very happily described as having 

been under the old system “ the state’s man of all work.” His multifari- 


THE GOVERNMENT OF GREAT BRITAIN. 


227 


ous duties brought him into the service (a) of the Privy Council, under 
whose Veterinary Department he participated in the administration of 
the Acts relating to contagious cattle diseases ; (6) of the Home Office, 
under which he acted in governing the county constabulary, in conduct¬ 
ing the administration of lunatic asylums, and in visiting prisons ; (c) of 
the Board of Trade, under whose general supervision he provided and 
tested weights and measures, constructed and repaired bridges, and over^ 
saw highway authorities ; and (d) of the Local Government Board, under 
whose superintendence he appointed parish overseers of the poor, exer¬ 
cised, on appeal, a revisory power over the poor-rates, and took a certain 
part in sanitary regulation. The Justices, besides, formerly levied the 
county tax, or ‘rate,’ out of which the expenses of county business were 
defrayed; issued licenses for the sale of intoxicating drinks (as they still 
do), for the storage of gunpowder and petroleum, and for other under¬ 
takings required by law to be licensed ; divided the counties into highway, 
polling, and coroner’s districts; issued orders for the removal of paupers 
to their legal places of settlement; fulfilled a thousand and one adminis¬ 
trative functions too various to classify, too subordinate to need enumera¬ 
tion, now that most of them have been transferred to the Councils. The 
trial of criminal cases, together with the performance of the various func¬ 
tions attendant upon such a jurisdiction, always constituted, of course, 
one of the weightiest duties of their office, and is now its chief and almost 
only duty. 

“Long ago,” laughs Mr. Maitland, speaking before the passage 
of the Act of 1888, “long ago lawyers abandoned all hope of describing 
the duties of a justice in any methodic fashion, and the alphabet has 
become the only possible connecting thread. A Justice must have some¬ 
thing to do with ‘ Railroads, Rape, Rates, Recognizances, Records, and 
Recreation Grounds’; with ‘Perjury, Petroleum, Piracy, and Play¬ 
houses’; with ‘Disorderly Houses, Dissenters, Dogs, and Drainage.’” 1 

Character and Repute of the Office of Justice. — The office 
of Justice of the Peace is representative in the same sense, —not an un¬ 
important sense, — in which the unreformed parliaments of the early part 
of the century were representative at any rate of the county populations. 
The Justices are appointed from among the more considerable gentry of 
the counties, and represent in a very substantial way the permanent 
interests of the predominantly rural communities over whose justice they 
preside. An interesting proof of their virtually representative character 
appears in the popularity of their office during the greater part of its 
history. Amidst all the extensions of the franchise, all the remaking of 
representative institutions which this century has witnessed in England, 
the Justiceship of the Peace remained all the while practically untouched, 
because on all hands greatly respected, until the evident need to introduce 

1 Justice and Police ? p. 84. 


228 


THE GOVERNMENT OF GREAT BRITAIN. 


system into local government, and the apparent desirability of systematic 
ing it in accordance with the whole policy of recent reforms in England 
by extending the principle of popular representation by election to county 
government, as it had been already extended to administration in the 
lesser areas, led to the substitution of County Councils for the Justices 
as the county authority in financial and administrative affairs. 

The Lord Lieutenant.— In the reign of Mary a ‘Lord 
Lieutenant 9 took the place of the Sheriff in the County as head 
of the militia, becoming the chief representative of the Crown in 
the County, and subsequently the keeper of the county records 
(Custos Rotulorum). The Sheriff, since the completion of this 
change, has been a merely administrative officer, executing the 
judgments of the courts, and presiding over parliamentary elec¬ 
tions. The command of the militia remained with the Lords 
Lieutenant until 1871, when it was vested in the Crown, — 
that is assumed by the central administration. (Compare pages 
220-221.) 

The Reform of 1888. — The reform of local administration 
proposed by the ministry of Lord Salisbury, in the spring of 1888, 
although not venturing so far as it would be necessary to go to 
introduce order and symmetry into a patch-work system, sug¬ 
gested some decided steps in the direction of simplification and 
coordination. The confusions of the existing arrangements were 
many and most serious. England was divided into counties, 
boroughs, urban sanitary districts, rural sanitary districts, poor- 
law parishes, poor-law unions, highway parishes, and school dis¬ 
tricts; and these areas had been superimposed upon one another 
with an astonishing disregard of consistent system,—without 
either geographical or administrative coordination. The confu¬ 
sions to be remedied, therefore, consisted ( a ) of the overlapping 
of the various areas of local government, the smaller areas not 
being in all cases subdivisions of the larger, but defined almost 
wholly without regard to the boundaries of any other areas; ( b ) 
of a consequent lack of coordination and subordination among 
local authorities, fruitful of the waste of money and the loss of 
efficiency always resulting from confusions and duplications of 
organization; (c) of varieties of time, method, and franchise in 
the choice of local officials; and (d) of an infinite complexity 


THE GOVERNMENT OF GREAT BRITAIN. 


229 


in the arrangements regarding local taxation, the sums needed 
for the various purposes of local government (for the poor, for 
example, for the repair of highways, for county outlays, etc.) 
being separately assessed and separately collected, at great ex¬ 
pense and at the cost of a great deal of vexation to the tax¬ 
payer. 

The ministry at first proposed to remedy this confusion, 
at least in part, by largely centering administration, outside the 
greater towns, in two areas, the County and the District. The 
system of poor-relief, through parishes and unions, was to be left 
untouched, but a beginning was to be made in unification by 
making the Counties and Districts the controlling organs of local 
government; provision was to be made for extensive readjust¬ 
ments of boundaries so that the smaller rural areas might be 
brought into proper relation and subordination to the larger by 
making them in all cases at least subdivisions of counties; both 
County and District were to have representative councils pre¬ 
sumably fitted ultimately to assume the whole taxing function; 
and the franchise by which these bodies were to be elected was 
to be assimilated to the simplest and broadest used in local and 
parliamentary elections. 

Only a portion of this reform, however, it turned out, 
could be got through Parliament. The provisions relating to the 
formation of Districts were left out, and only the county was 
reorganized. The larger boroughs were given county privileges; 
the smaller were brought into new and closer relations with the 
reconstructed county governments. London, too, was given a 
county organization. The integration of the smaller areas of 
rural administration with the new county system was not accom¬ 
plished till 1894. 

Administrative Counties and County Boroughs. —The Act, 
as passed, coordinated Counties with what were thenceforth to 
be called ‘county boroughs.’ Every borough of not less than 
fifty thousand inhabitants at the time the Act was passed, or 
which was, before the passage of the Act, treated as a county (in all, 
sixty-one boroughs), was constituted a ‘county borough,’ and was 
formally put alongside the county in rank and privileges. This 
did not mean that these boroughs were to be given a county or- 


230 


THE GOVERNMENT OF GREAT BRITAIN. 


ganization. Paradoxically enough, it meant just the opposite, 
that the counties were to be given an organization closely resem- 
bling that already possessed by the boroughs. The nomen¬ 
clature of the Act would be more correct, though possibly less 
convenient, had it called the counties ‘borough counties ’ instead 
of calling some of the boroughs ‘county boroughs . 9 The measure 
has been very appropriately described as an Act to apply the 
Municipal Corporations Act of 1882, whose main provisions date 
back as far as 1835 (page 240), to county government, with cer¬ 
tain relatively unimportant modifications. 

The counties designated by the Act are dubbed * administrative 
counties,’ because they are not in all cases the historical counties of the 
map. In several instances counties are separated into parts for the pur¬ 
poses of the reorganization. Thus the East Riding of Yorkshire consti¬ 
tutes one ‘administrative county,’ the North Riding another, and the 
West Riding a third ; Suffolk and Sussex also have each an East and 
West division ; Lincoln falls apart into three administrative counties, etc. 
All boroughs of less than 50,000 inhabitants not treated as counties are more 
or less incorporated with the counties in which they lie. (See page 242.) 

The County Councils: their Constitution. — In pursuance 
of the purpose of assimilating county to borough organization, 
the counties are given representative governing assemblies com¬ 
posed of councillors and aldermen, presided over by a chairman 
whose position and functions reproduce those of the borough 
mayors, and possessing as their outfit of powers almost all the 
miscellany of administrative functions hitherto belonging to the 
Justices of the Peace. There is not, it should be observed, a 
Council and a Board of Aldermen, as in American cities, but a 
single body known as the Council and composed of two classes of 
members, the one class known as Aldermen, the other as Coun¬ 
cillors. These two classes differ from each other, not in power 
or in function, but only in number, term, and mode of election. 
The Councillors are directly elected by the qualified voters of the 
County and hold office for a term of three years; the Aldermen 
are one-third as many as the Councillors in number, are elected 
by the Councillors, either from their own number or from the 
qualified voters outside, and hold office for six years, one-half of 
their number, however, retiring every three years, in rotation. 


THE GOVERNMENT OF GREAT BRITAIN. 


231 


This single-chambered Council of Aldermen and Councillors elects 
its own chairman, to serve for one year, and pays him such com¬ 
pensation as it deems sufficient. During his year of service the 
chairman exercises the usual presidential, but no independent 
executive, powers, and is authorized to act as a Justice of the 
Peace, along with the rest of the ‘ Commission ’ of the County. 

Any one may be elected a councillor who is entitled to vote in parlia¬ 
mentary elections and is the owner of property held by freehold, copyhold, 
leasehold or other tenure within the area ; and in the counties, though 
not in the boroughs, peers owning property in the county and “clerks in 
holy orders and other ministers of religion ” may be chosen to the Council. 

The number of councillors and the number of aldermen in each 
County Council (for the latter number is always one-third of the former) 
was fixed in the first instance by an order of the Local Government Board, 
and is in some cases very large. Thus Lancashire has a Council (aider- 
men, of course, included) of 140 members, the West Riding of Yorkshire 
a council of 120, Devon a council of 104. Rutland, whose Council is the 
smallest, has 28. The average is probably about 75. For the election of 
councillors the county, including such boroughs as are not ‘ county bor¬ 
oughs,’ is divided into electoral districts , one councillor being chosen from 
each district. The number of these districts having been determined by 
the order of .the Local Government Board, their area and disposition were 
fixed in the first instance by Quarter Sessions, or, within the non-county 
boroughs needing division, by the borough Council, due regard being had 
to relative population and to a fair division of representation between rural 
and urban populations. The number of councillors and the boundaries 
of electoral districts may be changed by order of the Local Government 
Board upon the recommendation of the Council of a borough or county. 

Local Government Franchise. — In England, Wales, and 
Ireland the franchise for all local government areas has, by the 
Representation of the People Act of 1918, been extended to all men 
and women of full age not subject to any legal incapacity who are 
jointly or severally occupiers as owners or tenants of any land or 
premises in a local government area, if they have so occupied for 
six months ending either on the 15th of January or the 15th of 
July. Tenant includes lodgers in unfurnished quarters. In 
Scotland the local government franchise is enjoyed by men and 
women of full age who are owners or occupiers of lands and 
heritages of £10 yearly value ; or inhabitant occupiers of dwelling 


232 


THE GOVERNMENT OF GREAT BRITAIN. 


houses ; or occupiers of unfurnished lodgings of the yearly value 
of £10; or service occupiers. Everywhere in the United King¬ 
dom the wife of a qualified local government elector enjoys the 
franchise if she is thirty years old. 

Powers of the County Councils. — The Council of each 
County is a body corporate and as such may have a common seal, 
hold property, make by-laws, etc. Its by-laws, however, unless 
they concern nuisances, are subject to approval by the Secretary 
of State [the Home Secretary], and may be annulled by an order 
in Council. 

(1) The Council holds and administers all county property, and 
may purchase or lease lands or buildings for county uses; 

(2) With it rests the duty of maintaining, managing, and, when 
necessary, enlarging, the pauper lunatic asylums of the county, 
and of establishing and maintaining, or contributing to, reforma¬ 
tory and industrial schools ; by the Education Act of 1902 it was 
given extensive authority over education. 

(3) It is charged with maintaining county bridges, and all main 
roads, in every part not specially reserved by urban authorities for 
their own management because lying within their own limits; 
and it may declare any road a main road which seems to serve as 
such, and which has been put in thorough repair, before being 
accepted by the county, by the local highway authorities; 

(4) It administers the statutes affecting the contagious diseases 
of animals, destructive insects, fish preservation, weights and 
measures, etc.; 

(5) It appoints, pays, and may remove the county Treasurer, 
the county coroner, the public surveyor, the county analyst, and 
all other officers paid out of the county rates, — except the clerk 
of the Peace and the clerks of the Justices, — including the medi¬ 
cal health officers, though these latter functionaries report, not to 
the Council (the Council receives only a copy of their report), but 
to the Local Government Board, and the only power of the Council 
in the premises is to address to the Board, independently and of 
their own motion, representations as to the enforcement of the 
Public Health Acts where such representations seem necessary: 

(6) It determines the fees of the coroner and controls the 
division of the county into coroners’ districts; 


THE GOVERNMENT OF GREAT BRITAIN. 


238 


(7) It divides the county into polling districts also for parlia* 
mentary elections, appoints voting places, and supervises the 
registration of voters; 

(8) It sees to the registering of places of worship, of the rules 
of scientific societies, of charitable gifts, etc. 

It is obviously impossible to classify or make any generalized 
statement of this miscellany of powers: they must be enumerated or not 
stated at all. They are for the most part, though not altogether, the 
administrative powers formerly intrusted to the Justices of the Peace. 

The Licensing Function, being semi-judicial, is left in most 
cases with the Justices of the Peace; but the County Council is 
assigned the granting of licenses to music and dancing halls, to 
houses which are to be devoted to the public performance of stage 
plays, and for the keeping of explosives. 

Oddly enough, the County Council is, by another section of the 
Act of 1888, authorized to delegate its powers of licensing in the case of 
playhouses and in the case of explosives back to the Justices again, acting 
in petty sessions. The same section also permits a similar delegation to the 
Justices of the powers exercised by the Council under the Act touching 
contagious cattle diseases. 

The Financial Powers of the Council are extensive and 
important. The Council takes the place of the Justices in deter¬ 
mining, assessing, and levying the county, police, and hundred 
rates, in disbursing the funds so raised, and in preparing or revis¬ 
ing the basis or standard for the county rates; though in this last 
matter it acts subject to appeal to Quarter Sessions. It may 
borrow money, “on the security of the county fund,” for the 
purpose of consolidating the county debt, purchasing property for 
the county, or undertaking permanent public works, provided it 
first obtain the consent of the Local Government Board to the 
raising of the loan. That Board gives or withholds its consent 
only after a local inquiry, and, in case it assents, fixes the period 
within which the loan must be repaid, being itself limited in this 
last particular by a provision of law that the period must never 
exceed thirty years. 

If the debt of the county already exceed ten per cent, of the 
annual ratable value of the ratable property of the county, or if the pro¬ 
posed loan would raise it above that amount, a loan can be sanctioned 


THE GOVERNMENT OF GREAT BRITAIN. 


2S4 

only by a provisional order of the Board, — an order, that is, which 
becomes valid only upon receiving the formal sanction of Parliament also, 
given by public Act. A county may. issue stock, under certain limita¬ 
tions, if the consent of the Local Government Board be obtained. 

Additional Powers. — The Act of 1888 provides that any othei 
powers which have been conferred upon the authorities of particular locali¬ 
ties by special Act, and which are similar in character to those already 
vested in the County Councils, may be transferred to the proper County 
Councils by provisional order of the Local Government Board ; and also 
that a similar provisional order of that Board may confer upon a County 
Council any powers, arising within the County , which are now exercised 
by the Privy Council, a Secretary of State, the Board of Trade, the Local 
Government Board itself, or any other government department, provided 
they be powers conferred by statute and the consent of the department 
concerned be first secured. 

The County Budget. — At the beginning of every local 
financial year (April 1st) an estimate of the receipts and expendi¬ 
tures of the year is submitted to the Council, and upon the basis 
of this, the Council makes estimate of the sums to be needed, 
and fixes the rates accordingly. The Council’s estimate is made 
for two six-month periods, and is subject to revision for the 
second six-month period, provided the experience of the first 
prove it necessary either to increase or decrease the amounts to 
be raised. 

Returns of the actual receipts and expenditures of each 
financial year are also made to the Local Government Board, in 
such form and with such particulars as the Board directs; and 
full abstracts of these returns are annually laid before both 
Houses of Parliament. The county accounts are, moreover, 
periodically audited by district auditors appointed by the Local 
Government Board. The accounts of the county Treasurer are 
audited by the Council. 

Local rates are assessed exclusively upon real estate, and, 
until the passage of the Local Government Act of 1888, it was 
the habit of Parliament to make annual ‘ grants in aid of the 
rates’ from the national purse, with the idea of paying out of 
moneys raised largely upon personal property some part of the 
expense of local administration. The Act of 1888 substitutes 
another arrangement. It provides that all moneys collected from 


THE GOVERNMENT OF GREAT BRITAIN. 


235 


certain licenses (a long list of them, from liquor licenses to licenses 
for male servants and guns), together with four-fifths of one-half 
of the proceeds of the probate duty, shall be distributed among 
the counties from the imperial treasury, under the direction of 
the Local Government Board, for the purpose of defraying cer¬ 
tain specified county expenses, notably for the education of pau¬ 
pers and the support of pauper lunatics. 

The Police Powers, long exercised by the Justices of the 
Peace, are now exercised by a joint committee of Quarter Ses¬ 
sions and the County Council. This committee is made up, in 
equal parts, of Justices and members of the Council; elects its 
own chairman, if necessary (because Gf a tie vote) by lot; and 
acts, when appointed, not as exercising delegated authority, but 
as an independent body. The term of the committeemen is, how¬ 
ever, determined by the bodies which choose them. 

The Parish. —Parishes there have been in England ever 
since the Christian church was established there; but the Parish 
which now figures in English local government inherits nothing 
but its name intact from those first years of the national history. 
The church, in its first work of organization, used the smallest 
units of the state for the smallest divisions of its own system : 
it made the township its parish; and presently the priest was 
always to be seen going up with the reeve and the four men of the 
township to the hundred and the county courts. Only where the 
population was most numerous did it prove necessary to make 
the parish smaller than the township; only where it was least 
numerous did it seem expedient to' make the parish larger than 
the township. Generally the two were geographically coin¬ 
cident. During much the greater part of English history, too, 
citizenship and church membership were inseparable. The 
vestry, therefore, which was the assembly of church-mem¬ 
bers which elected the church-wardens and regulated the 
temporalities of the local church, was exactly the same body 
of persons that, when not acting upon church affairs, consti¬ 
tuted the township meeting. It was the village moot ‘in its 
ecclesiastical aspect/ And when the township privileges were, 
by feudalization, swallowed up in the manorial rights of the 
baronage, the vestry was all that remained of the old organiza- 


236 


THE GOVERNMENT OF GREAT BRITAIN. 


tion of self-government; for the court, or civil assembly, of the 
township was superseded by the baron’s manorial court. But 
the church was not absorbed; the vestry remained, and whatever 
scraps of civil function escaped the too inclusive sweep of the 
grants of jurisdiction to the barons the people were fain to enjoy 
as vestrymen. 

The Poor-law Parish.—It was in this way that it fell 
out that the township, when acting in matters strictly non- 
ecclesiastical, came to call itself the parish, and that it became 
necessary to distinguish the ‘civil parish’ from the ‘ecclesiasti¬ 
cal parish. ’ The vestry came at last to elect, not church-wardens 
only, but way-wardens also, and assessors; and in the sixteenth 
century (1535, reign of Henry VIII.) the church-wardens were 
charged with the relief of the poor. We are thus brought within 
easy sight of the parish of to-day. The legislation of the present 
century, which has been busy about so many things, has not 
failed to readjust the parish and in most cases, as altered by 
statute to suit the conveniences of political administration, “ the 
modern civil parish coincides neither with the ancient civil par¬ 
ish, nor with the ecclesiastical parish ”; but old parochial asso¬ 
ciations still survive, and many of the ancient parochial duties 
connected with the support of the poor. Until 1894 the parochial 
authority was still the ancient vestry, reduced almost to a mini¬ 
mum of powers, indeed, but not yet taken from its seat of con¬ 
trol. In 1894 Parliament completed the reorganization of local 
government begun in 1888: vestries were relegated, at any rate 
in all rural districts, to the exercise of ecclesiastical functions 
alone; and the parishes, with a new democratic organization, 
became once more the vital units of local self-government. 

The Reform of 1894. — All the legislation attempted in 
England during the present century with regard to local govern¬ 
ment, whether its object was first construction or reform, has 
carefully observed the difference between ‘rural’ and ‘urban’ 
areas; and the law of 1894 is no exception to the rule. The 
parishes which lie within the limits of boroughs or within the 
limits of those more thickly settled areas which, though without 
borough organization, are yet distinguished by the law as ‘urban ’ 
in their means of local government (page 239), are not directly 


THE GOVERNMENT OF GREAT BRITAIN. 


237 


affected by the Act. But the organization and action of the rural 
parishes are revolutionized. They are made self-governing com¬ 
munes, with a very notable list of powers and privileges. 

Every rural parish, great or small, has now its primary 
assembly, its parish meeting , of which every person of legal age 
in the parish, man or woman, is a member who is a qualified local 
government elector. In parishes which have less than three 
hundred inhabitants the parish meeting is the actual governing 
body, unless the County Council sees fit, with the consent of the 
parish electors, to set up a parish council; but in parishes which 
have a population of more than three hundred a parish council of 
from five to fifteen members, — the County Council determines 
the number in each case, — is given charge of affairs, and the 
parish meeting exercises only the functions of electing councillors, 
consenting to the larger sorts of loans, and voting upon the adop¬ 
tion and operation of certain statutes, known as the ‘ adoptive 
acts,’ which Parliament has left it to them to adopt and act upon 
or not as they please. These are the statutes with regard to 
street lighting and watching, the establishment of baths and 
wash-houses, the undertaking of certain public improvements, 
the foundation of public libraries, and like matters. Women, 
whether married or single, are eligible for election to the parish 
councils , and even to the chairmanship of those bodies. The term 
of a parish council is three years. 

Parishes which are governed by a parish meeting only, without a 
council, usually appoint one or more executive committees for the actual 
work of administration; and, if they accept the ‘ adoptive ’ acts men¬ 
tioned in the last paragraph, they elect commissioners to carry them into 
execution; but in very many cases the County Councils have given these 
small parishes councils, and where there are councils they are the execu¬ 
tive agents of the parish in practically every sort of business. 

The chairman of a parish council is ex officio a Justice of the Peace 
for the county in which he resides; and this feature of the law has, in 
view of the very large number of parishes in every county, radically 
changed the character of the commission of the peace. Any one may 
be a parish councillor, and any one may be a chairman of a parish 


238 


THE GOVERNMENT OF GREAT BRITAIN. 


council who can he a member of a parish meeting (page 237), and a seat 
on the county bench of Justices is consequently no longer by any means 
the exclusive possession of country gentlemen. 

The parish councillors are elected in parish meeting, by a mere 
show of hands, — unless a formal poll be demanded. No elector, what¬ 
ever his property or interest, can cast more than one vote in any one 
parish; but those who have the requisite property qualification in more 
than one parish can be registered, and can vote in every parish in which 
they can prove the possession of the requisite amount of property. Mar¬ 
ried women cannot qualify, however, upon the same property upon which 
their husbands have qualified. 

Parochial Powers.—The parish councils (or the parish 
meetings , as the case may be) exercise a miscellany of powers 
variously distributed, until 1894, amongst vestries, church-war¬ 
dens, overseers of the poor, and commissioners of various sorts 
and functions. A parish council is a body corporate, and as 
such owns and manages the property of the parish. It may ac¬ 
quire property by gift or purchase, — not merely for the erection 
of parochial buildings and other directly parochial uses, but also 
for the establishment and maintenance of recreation grounds, and 
for the purpose of making allotments at a fixed rental to such 
residents of the parish as may wish to acquire holdings. It has 
control of the water supply of the parish, and is the local sani¬ 
tary authority; it can acquire, maintain, or change public rights 
of way; it maintains the highways and the enclosed burial 
grounds of the parish; and it provides for the prevention and ex¬ 
tinguishment of fires. It fixes the local assessment and tax rate, 
on appeal; prepares the parish register; and appoints the over¬ 
seers and assistant overseers of the poor, who assess the poor rates 
and make out the jury lists and the lists of parliamentary and 
county voters. The right to appoint the overseers was taken 
over from the Justices of the Peace. 

Supervision. —The County Councils are given supervisory charge 
of the new system of parish government. They group or divide the par¬ 
ishes for action under the law, in their discretion ; they may create or dis¬ 
solve parish councils in the smaller parishes ; they determine the number 
of members fn each parish council; supervise the action of the parish coun¬ 
cils in the matter of loans and land allotments; regulate in some degree 
the custody and preservation of the parish books and documents ; and in 
many other ways stand superintendent over their exercise of powers. 


THE GOVERNMENT OF GREAT BRITAIN. 239 

Urban parishes are for the most part unaffected by the Act of 
1894, and still act in civil as well as in church matters through their ves¬ 
tries, as of old. 

The Rural District. — Before 1894 the rural parishes 
were grouped in poor-law Unions, governed, in sundry other 
matters as well as in the care of the poor, by a Board of Guar¬ 
dians. Various Highway Boards, too, Burial Boards, Bath Com¬ 
missioners, Library Commissioners, and Public Improvement 
Boards, acted for the parishes singly or in groups in the several 
special matters committed to their direction. The Act of 1894 
substituted ‘Rural Districts 9 for the Unions, gave to each Dis¬ 
trict an administrative Council, and united in the hands of that 
Council the various local functions hitherto dispersed and sepa¬ 
rated. The District Council is elected for a term of three years 
(as the Board of Guardians was), and is charged with the general 
oversight and conduct of all business affecting the common inter¬ 
ests of the parishes embraced within this District in matters of 
local government. It takes the place of the old Board of Guar¬ 
dians in the administration of the poor law, and is the general 
highway, sanitary, and administrative body of the District. Its 
members are elected by the parishes in parish meeting , and any 
one may be chosen who is a parochial elector in one of the par¬ 
ishes of the District, or who has resided in the District for a 
twelvemonth preceding the election. The chairman of a District 
Council , like the chairman of a parish council , is ex officio a Jus¬ 
tice of the Peace for the county. 

The Urban District. — The urban parishes, outside incor¬ 
porated boroughs, are also grouped into Districts, each with its 
administrative Council, and to these Councils are assigned much 
the same powers as those which are exercised by the Councils of 
the rural Districts, except that they do not constitute the poor- 
law authority of the District. That is still, in the urban Dis¬ 
tricts, a distinct and separate Board of Guardians, selected for the 
purpose. The Local Government Board may, in its discretion, 
confer upon Urban District Councils, by order, any or all of 
the powers of rural parish councils , however, and so render 
them the most important administrative authorities for theii 


area. 


240 


THE GOVERNMENT OF GREAT BRITAIN. 


Women are eligible to serve upon District Councils as well aa 
upon parish councils, and are eligible also to be chosen chairmen ; though 
a woman, if chairman, is not entitled to act as a Justice of the Peace. 

The County Councils have a certain very considerable supervisory 
power over both Rural and Urban District Councils, fixing or altering the 
number of Councillors, hearing appeals from the parishes against their 
action or default, etc. 

Municipal Corporations. — The constitution of those Eng¬ 
lish towns which have fully developed municipal organizations 
rests upon the Municipal Corporations Act of 1835 and its vari¬ 
ous amendments, as codified in an Act of 1882 of the same name. 
This latter Act is, in its turn, in some degree altered by the Local 
Government Act of 1888. If the inhabitants of any place wish 
to have it incorporated as a municipality, they must address a 
petition to that effect to the Privy Council. Notice of such a 
petition must be sent to the Council of the county in which the 
place is situate and also to the Local Government Board. The 
Privy Council will appoint a committee to consider the petition, 
who will visit the place from which the petition comes and there 
see and hear for themselves the arguments pro and con. All 
representations made upon the subject by either the County 
Council or the Local Government Board must also be considered. 

Generally there is considerable local opposition either to such a 
petition being offered or to its being granted when offered ; for the govern¬ 
ment of the place is usually already in the hands of numerous local author¬ 
ities of one kind or another who do not relish the idea of being extin¬ 
guished ; and there are always, besides, persons who do not care to take 
part in bearing the additional expenses of a more elaborate organization. 

If the petition be granted, the Privy Council issues a 
charter of incorporation to the place, arranging for the extinction 
of competing local authorities, setting the limits of the new 
municipality, determining the number of its councillors, and 
often even marking out its division into wards. 

Once incorporated, the town takes its constitution ready¬ 
made from the Act under whose sanction it petitioned for incor¬ 
poration. That Act provides that the borough shall be governed 
by a mayor, aldermen, and councillors. The councillors hold 
office for a term of three years, one-third of their number going 


THE GOVERNMENT OF GREAT BRITAIN. 


241 


out, in rotation, every year. There are always added to the 
councillors one-third as many aldermen elected by the coun¬ 
cillors for a term of six years, one-half of their number retir¬ 
ing from office every three years, by rotation. The mayor is 
elected by the Council, — by the aldermen and councillors, 
that is, who constitute but a single body, — holds office for 
one year only, and, unlike the councillors and aldermen, receives 
a salary. 

Judicial Status of Boroughs. — Whatever powers are 
not specifically granted to a municipality remain with previously 
constituted authorities. The Municipal Corporations Act does 
not provide for the exercise of judicial powers by the authorities 
of a borough by virtue of their separate incorporation. Unless 
additional special provision is made to the contrary, a munici¬ 
pality remains, for the purposes of justice, a part of the county. 
By petition, however, it may obtain an additional ‘ commission of 
the peace ’ for itself, or even an independent Court of Quarter 
Sessions. 

Either, then, (a) a borough contents itself in judicial matters 
with the jurisdiction of the county Justices; or (6) it obtains 
the appointment of additional Justices of its own, who are, how¬ 
ever, strictly, members of the county commission and can hold 
no separate Court of Quarter Sessions; or (c) it acquires the 
privilege of having Quarter Sessions of its own. 

In the latter case a professional lawyer is appointed by the 
Crown, under the title of Recorder, to whom is given the power 
of two Justices acting together and the exclusive right to hold 
Quarter Sessions, — who is made, as it were, a multiple Justice of 
the Peace. 

Boroughs which have a separate commission of the peace are 
known as “ counties of towns ” ; those which have independent 
Quarter Sessions as “ quarter sessions boroughs.” Every mayor 
is ex officio Justice of the Peace, and continues to enjoy that office 
for one year after the expiration of his term as mayor. This is 
true even when his borough has no separate commission of the 
peace. 


242 


THE GOVERNMENT OF GREAT BRITAIN. 


County Boroughs. — In every borough the mayor, alder* 
men, and councillors, who sit together as a single body, constitute 
the ‘Council ’ of the corporation; and the powers of the Council, 
if the borough be a ‘County Borough/ are very broad indeed. 
Since the passage of the Local Government Act of 1888, it is 
necessary to distinguish, in the matter of powers, several classes 
of boroughs. ‘County Boroughs’ stand apart from the counties 
in which they lie, for all purposes of local government, as com¬ 
pletely as the several counties stand apart from each other. Ex¬ 
cept in the single matter of the management of their police force, 
they may not even arrange with the county authorities for merg¬ 
ing borough with county affairs. Their Councils may be said, in 
general terms, to have, within the limits of the borough, all the 
powers once belonging to the county Justices except those strictly 
judicial in their nature, all the sanitary powers of urban sanitary 
authorities, and powers of school administration, — all regulative 
and administrative functions except those of the poor-law Unions 
into which urban parishes are still grouped- In the case of these 
‘ county boroughs,’ all powers conferred upon counties are powers 
conferred upon them also. 

If the Council of any borough or of a county make representation 
to the Local Government Board that it is desirable to constitute a borough 
which has come to have a population of not less than fifty thousand a 
‘county borough,’ the Board shall, unless there be some special reason to 
the contrary, hold a local inquiry and provide for the gift of county status 
to the borough or not as they think best. If they order the borough con¬ 
stituted a ‘county borough,’ the order is provisional merely, and must be 
confirmed by Parliament. 

Other Boroughs. — Boroughs which have not been put in 
the same rank with counties and given full privileges of self-ad- 
ministration as ‘county boroughs,’ fall into three classes in respect 
of their governmental relations to the counties in which they lie: 

(1) Those which have their own Quarter Sessions and whose 
population is ten thousand or more. These constitute for several 
purposes of local government parts of the counties in which they 
are situate. The main roads which pass through them are cared 
for by the county authorities, unless within twelve months after 
the date at which the Act of 1888 went into operation (or after 


THE GOVERNMENT OF GREAT BRITAIN. 


243 


the date at which any road was declared a ‘main road ’) the 
urban authorities specially reserved the right to maintain them 
separately. They contribute to the county funds for the pay¬ 
ment of the costs of the assizes and judicial sessions held in them. 
They send members, too, to the County Council. Their repre¬ 
sentatives, however, cannot vote in the County Council on ques¬ 
tions affecting expenditures to which the parishes of the borough 
do not contribute by assessment to the county rates. Beyond 
the few matters thus mentioned, they are as independent and 
as self-sufficient in their organization and powers as the ‘county 
boroughs ’ themselves. 

(2) Boroughs which have separate Quarter Sessions but whose 
population numbers less than ten thousand. These are made by 
the Act of 1888 to yield to the Councils of the counties in which 
they lie the powers once exercised by their own Councils or Jus¬ 
tices in respect of the maintenance and management of pauper 
lunatic asylums, their control of coroners, their appointment of 
analysts, their part in the maintenance and management of re¬ 
formatory and industrial schools, and in the administration of the 
Acts relating to fish conservation, explosives, and highways and 
locomotives. 

(3) Boroughs which have not a separate court of Quarter Ses¬ 
sions and whose population is under ten thousand are for all 
police purposes parts of the counties in which they are situate, 
and have, since 1888, been, for all save a few of the more exclu¬ 
sively local matters of self-direction, merged in the counties, in 
whose Councils they are, of course, like all other parts of the 
counties, represented. 

Every borough has its own paid Clerk and Treasurer, who are 
appointed by the Council and hold office during its pleasure, besides 
“such other officers as have usually been appointed in the borough, or as 
the Council think necessary.” If a borough have its own Quarter Ses¬ 
sions, it has also, as incident to that Court, its own Clerk of the Peace and 
its own Coroner. 

The Financial Powers of a municipal Council are in all cases 
strictly limited as regards the borrowing of money. “In each instance, 
when a loan is required by a municipal corporation, the controlling au¬ 
thority [the Local Government Board] is to be applied to for its consent. 
A local inquiry, after due notice, is then held, and if the loan is approved, 


244 


THE GOVERNMENT OF GREAT BRITAIN. 


a term of years over which the repayment is to extend is fixed by the 
central authority.” 1 The same powers are exercised by the Local Gov¬ 
ernment Board with regard to the larger loans of parish and district Coun¬ 
cils also. 

“The accounts of most local authorities are now audited by the 
Local Government Board, but boroughs are exempt from this jurisdiction. 
The audit is conducted by three borough auditors, two elected by the 
burgesses, called elective auditors, one appointed by the mayor, called the 
mayor’s auditor.” 2 

Boroughs and Urban Districts. —The difference between 
boroughs and urban districts is not at all a difference of size, — 
boroughs range from a few hundred to half a million inhabitants 
and urban districts from a few hundred to a hundred thousand ; 2 
it has hitherto been a difference, apparently, of local preference, 
rather, and of legal convenience. The boundaries of a borough, 
when once fixed by a charter of incorporation, could, until the 
passage of the Act of 1888, be altered only by a special Act of 
Parliament: it was much easier to apply to the Local Govern¬ 
ment Board, which could of its own authority create what was 
then known as an Urban Sanitary District. As towns already 
incorporated grew, therefore, the added portions became inde¬ 
pendently incorporated as Urban Sanitary Districts, and thus 
the town was pieced out. One writer was able to say, in 1882, 
“Nowhere, from one end of England to the other, do we find 
an instance (Nottingham alone excepted) of a large borough 
which is municipally self-contained, and consequently self-gov¬ 
erning.” 3 

In the Local Government Act of 1888 it was provided that the 
boundaries of a borough might be altered by provisional order of the 
Local Government Board, upon the address of the borough Council. 
This order, being provisional, must receive the sanction of Parliament, 
and is made only after local inquiry. The proceedings, therefore, for 
changing the boundaries of a borough were still left much more elaborate 
and difficult than the free action of the Local Government Board with 
reference to urban districts. 

Central Control of Urban Authorities. —Full municipal cor¬ 
porations look partly (in the matter of sanitary regulation, for example,) 

1 Bunce, Cobden Club Essays , 1882, p. 283; title, “Municipal Borougha 
»nd Urban Districts.” 2 Chalmers, p. 87. 8 Bunce, p. 298. 


THE GOVERNMENT OF GREAT BRITAIN. 


24b 


to the Local Government Board as a central authority exercising powers 
of supervision, partly (in the management of the constabulary, for in¬ 
stance,) to the Home Office, and partly (if seaports) to the Board of 
Trade. Urban Districts, however, have but a single central authority set 
over them, the Local Government Board. 

London. — The metropolis was, until the passage of the 
Act of 1888, the unsolved problem, the unregenerate monster, 
of local government in England. The vast aggregation of houses 
and population known by the world as ‘ London/ spreading its 
unwieldy bulk over parts of the three counties of Middlesex, 
Surrey, and Kent, consisted of the City of London, a small cor¬ 
poration at its centre confined within almost forgotten boundaries, 
still possessing and belligerently defending mediaeval privileges 
and following mediaeval types of organization and procedure, and, 
round about this ancient City as a nucleus, a congeries of hundreds 
of old parishes and new urban districts made from time to time 
to meet the needs of newly grown portions of the inorganic mass. 
This heterogeneous body of mediaeval trade guilds, vestries, and 
sanitary authorities had been in some sort bound together since 
1855 by a Metropolitan Board of Works which exercised certain 
powers over the whole area outside the ‘ City/ 

The Local Government Act of 1888 made of the metrop¬ 
olis, not a ‘county borough/ but a county, — the ‘Administra¬ 
tive County of London ’ — with its own Lord Lieutenant, Sheriff, 
and Commission of the Peace, as well as its own Council. Its 
numerous parishes were left to act, as formerly, under their sev¬ 
eral vestries; and the Act of 1894 gave to those vestries the 
same constitution and substantially the same powers that are 
elsewhere in the kingdom possessed by the Urban District Coun¬ 
cils (page 239). The London Government Act of 1899 still further 
consolidated and coordinated the administration by creating 
twenty-eight metropolitan boroughs, each with its own mayor, 
aldermen, and councillors, with specially defined powers, which, 
in the matter of finance, are considerably limited. The ‘City’ 
is still left to occupy its separate place in the great metropolitan 
county as a quarter sessions borough not enjoying separate county 
privileges, — with some limitations special to its case, 


246 


THE GOVERNMENT OF GREAT BRITAIN. 


The number of councillors in the London County Council is 
fixed at twice the number of members returned to Parliament at 
the time of the passage of the Act of 1888 by the various con¬ 
stituencies of the metropolitan area. The councillors, thus, number 
118. The Council of the Metropolis is put upon an exceptional 
footing with regard to its quota of aldermen. The aldermen are 
to be one-sixth, instead of one-third, as many as the councillors. 
The total membership of the London Council is, therefore, 137. 

Central Control. — The plan of central control in Eng¬ 
land is manifestly quite indigenous. The central government is 
not present in local administration in the person of any superin¬ 
tending official like the Erench Prefect (pages 167, 168, 170), or 
any dominant board like the 1 Administration ’ of the Prussian 
Government District (pages 480-481). There has, indeed, been 
developing in England a marked tendency to bring local author¬ 
ities more and more under the supervision in important matters 
of the government departments in London, — a tendency which 
has led to the concentration, since 1871, in the hands of the Local 
Government Board of various powers once scattered among such 
authorities as the Home Office, the Privy Council, etc. But this 
tendency, which is towards control, has not been towards cen¬ 
tralization. It has, so far, not gone beyond making the ad¬ 
vice of the central authority always accessible by local officers 
or bodies, and its consent necessarj^ to certain classes of local 
undertakings. The central government has not itself often 
assumed powers of origination or initiative in local affairs. Even 
where the Local Government Board is given completest power 
the choice of the officers who are to put its regulations into force 
is generally left with the ratepayers in the districts concerned. 
Thus the authority of the Board over the Guardians of the Poor 
is complete ; but the Guardians are elected in the parishes. Its 
authority in sanitary matters makes its directions imperative as 
to the execution of the Public Health Acts; but in many cases 
the local health officers are appointees of the local bodies. The 
by-laws enacted by the county authorities, unless they affect 
nuisances, may be annulled by an order in Council; in the matter 
of borrowing money, too, local authorities are narrowly bound by 
the action of the Local Government Board; and its assent to 


THE GOVERNMENT OE GREAT BRITAIN. 247 

propositions to raise loans is seldom given without very thorough 
inquiry and without good reason shown. But all these are func¬ 
tions of system , so to say, rather than of centralization. Coordi¬ 
nation in methods of poor-relief is sought, that relief being given 
under national statutes, and the cooperation of central with local 
judgment in financial matters, local debts constituting a very 
proper subdivision of national finance. But the spirit in which 
the control is exercised, as well as the absence of permanent 
officials representing the central authority in local government, 
and even of permanent instrumentalities for the administration of 
financial advice, bespeak a system of cooperation and advice rather 
than of centralization. 

Local Government in Scotland.—An Act of 1889 ex* 

tended to Scotland a system of county government substantially 
the same as that created for England by the Act of 1888 ; and the 
Act of 1894 put parish councils like those of England into the 
place formerly held by parochial Boards, and erected a separate 
Local Government Board for Scotland, of which the Secretary for 
Scotland was made President. 

The Government of the English Colonies. 

English Colonial Expansion.—Doubtless the most sig¬ 
nificant and momentous fact of modern history is the wide diffu¬ 
sion of the English race, the sweep of its commerce, the dominance 
of its institutions, its imperial control of the destinies of half 
the globe. When, by reason of the closing of the old doors of 
the East by the Turk and the consequent turning about of Europe 
to face the Atlantic instead of the Mediterranean, England was 
put at the front instead of at the back of the nations of the Con¬ 
tinent, a profound revolution was prepared in the politics of the 
world. England soon defeated Holland and Spain and Portugal, 
her rivals for the control of the Atlantic and its new continents; 
and steadily, step by step, she has taken possession of almost 
every new land worth the having in whatever quarter of the 
globe. With her conquests and her settlers have gone also her 
institutions, until now her people everywhere stand for types of 
free men, her institutions for models of free government 


248 


THE GOVERNMENT OF GREAT BRITAIN. 


English Colonial Policy. — It was only by slow degrees, 
however, that England learned the right policy towards her colo¬ 
nies. She began, as Rome did, by regarding her possessions as 
estates, to be farmed for her own selfish benefit. Nothing less 
than the loss of America sufficed to teach her how short-sighted 
such a policy was. But, unlike Rome, she was fortunate enough 
to lose the best part of her possessions without being herself 
overwhelmed; and even after the loss of America time and op¬ 
portunity offered for the building up of another colonial empire 
scarcely less great. 

Towards her present colonies her policy is most liberal; for 
the England of the present day is a very different England from 
that which drove America into rebellion. Even the notable 
lesson emphasized in the loss of America would not have sufficed 
to bring England to her senses touching her true interests in the 
colonies, had she not herself speedily thereafter been brought by 
other causes to a change of heart. The movements of opinion 
which stirred her to religious revival, to prison reform, to en¬ 
lightened charity, to the reform of parliamentary representation, 
to a general social and political regeneration, stirred her also, no 
doubt, to vouchsafe to her colonists full rights as Englishmen. 

Lord Durham in Canada. — The turning point was 
reached in 1837, when a rebellion broke out in Lower Canada. 
Lower Canada was Erench Canada. Its government, like the 
governments of the American states south of it in their own 
colonial times, consisted of an Executive, a Legislative Council 
nominated by the Crown, and a legislative chamber elected by 
the colonists. The colonists had been exasperated by just such 
arbitrariness and lack of sympathy on the part of the Governor 
and his Council, and just such efforts to make the salaries and 
the maintenance of the judicial officers of the colony independent 
of the appropriations voted by the popular assembly, as had 
hastened the separation of the United States from England; and 
at last rebellion had been made to speak the demands of the colo¬ 
nists for constitutional reform. The rebellion was put down, but 
the defeated colonists were not treated as they would have been 
in 1776. A royal commissioner was sent out to them from the 
mother country to redress their grievances by liberal measures of 


THE GOVERNMENT OF GREAT BRITAIN. 249 

concession and reform. This commissioner was Lord Durham. 
He spoiled his mission by well-meant but arbitrary conduct which 
was misunderstood at home, and he was recalled ; but his report 
upon the condition of Canada and the measures necessary for 
her pacification may justly be called the fountain head of all that 
England has since done for the betterment of government in her 
colonies. Lord Durham recommended nothing less than complete 
self-government, with interference from England in nothing but 
questions immediately and evidently affecting imperial interests. 
1847 saw independent responsible self-government completely es¬ 
tablished in Canada, and subsequent years have seen it extended 
to all the British colonies capable of self-direction. 

The Self-governing Colonies. — The English colonies, as 
at present organized, may be roughly classified in two groups as 
(a) Self-governing and (6) Crown colonies. The self-governing 
colonies are five in number; namely, Canada, Newfoundland, 
the Commonwealth of Australia, the Union of South Africa, 
and New Zealand. In all of these there is practically complete 
independence of legislation in all matters not directly touching 
imperial interests: and in all there is full responsible govern¬ 
ment, — government, that is, through ministers responsible to 
representatives of the people for their policy and for all executive 
acts, because chosen from and representing the majority in the 
popular chamber. In Tasmania, and the Commonwealth of 
Australia, both branches of the legislature are elected; in the 
others the upper chamber is nominated by the Executive save in 
the Union of South Africa, where it is partly appointed and 
partly elected. But the origin of the upper chamber does not 
affect the full responsibility of the ministers or the practically 
complete self-direction of the colony. 

The Government of Canada. — In 1840 Parliament pro 
vided by Act for the union of Upper and Lower Canada (now the 
provinces of Ontario and Quebec) upon a basis suggested by Lord 
Durham’s report; but the legislative union of these two provinces, 
the one English, the other almost wholly French, was ill-advised 
and proved provisional only. Although an Act of 1854 granted 
to the united colonies a government as nearly as might be mod¬ 
elled upon the government of England herself, no satisfactory 


250 THE GOVERNMENT OF GREAT BRITAIN. 

basis of self-government was reached until, by the ‘ British North 
America Act J of 1867, the colonies were at once separated and re¬ 
integrated by means of a federal constitution. That Act is the 
present constitution of the 1 Dominion of Canada/ Under that 
constitution the nine provinces now comprised within the Do¬ 
minion, namely, Ontario, Quebec, Nova Scotia, New Brunswick, 
Manitoba, British Columbia, Prince Edward Island, Alberta, and 
Saskatchewan, have each a separate parliament and administra¬ 
tion. In each a Lieutenant-Governor presides ; in each, as in the 
Dominion itself, there is a ministry responsible for its policy and 
executive acts to a parliament fully equipped for self-direction in 
local affairs. 

The provisions of the British North America Act were drafted 
in Canada and accepted by the Parliament in England without 
alteration. In the division of powers which they make between 
the government of the Dominion and the governments of the 
several provinces, they differ very radically in character from 
the provisions of our own federal constitution. Our constitution 
grants certain specified powers to the general government and 
reserves the rest to the states; the British North America Act, 
on the contrary, grants certain specified powers to the provinces 
and reserves all others to the government of the Dominion. 
Among the powers thus reserved to the federal government is 
that of enacting all criminal laws. 

In all the provinces except Quebec and Nova Scotia the legis¬ 
lature consists of but a single house. 

The government of the Dominion is for the most part a very 
faithful reproduction of the government of the mother country. 
The Crown is represented by the Governor-General, who acts 
in the administration of the colony as the Crown acts in the 
administration of the kingdom, through responsible ministers, 
and whose veto upon legislation is never used, though bills about 
whose bearing upon imperial policy there were serious doubts 
have been reserved for the approval of the king in Council (that 
is, of the ministry of the day in England). 1 The 1 Cabinet ’ is a 
body unknown to the written constitution, but it comprises those 


1 Only one such bill has been refused the Royal assent. 


THE GOVERNMENT OF GREAT BRITAIN. 251 

r' 

members of the Privy Council who are also members of Parlia¬ 
ment who for the time being represent the views and policies of 
the majority in the popular house of the legislature, leading that 
house in legislation, and in all its functions following the prece¬ 
dents of responsible cabinet government established in England. 
The legislature consists of two houses, the Senate and the House 
of Commons. The Senate consists of ninety-six members nomi¬ 
nated for life by the Governor-General, — that is, in effect, 
appointed by the Dominion ministers; for in the composition of 
the Senate, as in the creation of peers at home, the advice of the 
ministers is decisive. 1 Each Senator must. be at least thirty 
years of age, must reside in the province for which he is ap¬ 
pointed, and must possess therein property, real or personal, to 
the value of four thousand dollars. The House of Commons 
consists of two hundred and twenty-one members elected from 
the several provinces, for a term of five years, upon the basis of 
one representative for every 22,688 inhabitants, it being under¬ 
stood, however, that Quebec shall never have less than sixty-five 
members. 

The eighteen ministers composing the cabinet are, the Prime 
Minister and President of the Council, Secretary of State, Min¬ 
ister of Trade and Commerce, Ministers of Justice, Marine and 
Fisheries, Railways and Canals, Militia and Defence, Finance, 
Agriculture, Public Works, Interior, Labor, Customs, Inland 
Revenue, Solicitor-General, Postmaster-General, and two min¬ 
isters without portfolios. 

The distribution of representation in the Dominion House of 
Commons is at present as follows: Ontario has 92 members, 
Quebec 65, Nova Scotia 20, New Brunswick 14, Manitoba 7, 
British Columbia 6, Prince Edward Island 5, and the North West 
Territories 4. The representatives are elected by a franchise 
based upon a small property qualification. 

The Parliament of the Dominion may be dissolved by the Gov¬ 
ernor-General upon the advice of the ministers, and a new Election 

1 The power is reserved to the sovereign, upon recommendation of the 
Governor-General, to direct that four or eight members be added to the 
Senate from the four divisions of Canada equally, but this power has never 
been exercised. 


252 


THE GOVERNMENT OF GREAT BRITAIN. 


held, as in England, when an appeal to the constituencies is 
deemed necessary or desirable. 

The Commonwealth of Australia. 

History of Federation. — The early settlements in Aus¬ 
tralia, treated as little more than convict stations, were ruled by the 
Governor as he pleased, but as early as 1823 the need for a legis¬ 
lative body in New South Wales was met by vesting this function 
in an appointed Council. In 1842 the principle of representation 
was introduced into the Council, though one-third of its number 
remained appointive, and in 1850 two houses were substituted 
for the single Council and responsible government was introduced 
at the same time. As the other colonies in Australia grew in popu¬ 
lation, representative institutions and responsible government 
were introduced, the last colony to complete the process being 
Western Australia in 1890. The six colonies, New South Wales, 
Victoria, South Australia, Tasmania, Queensland, and Western 
Australia, were all in possession of substantially identical forms 
of government, consisting of a Governor appointed by the Crown 
and advised by a Council, composed in part by the ministers of 
the day, and of a dual legislative body, the Parliament, to which 
the ministers were responsible. The constitutions of all the 
colonies were originally framed in the colonies, and subsequently 
enacted, with amendments, by the Parliament at Westminster. 

Trade and the customs formed from the beginning a strong in¬ 
centive toward federation, and in 1873 the Imperial Parliament 
removed the legal bars which had made a Customs Union im¬ 
possible, yet the divergent economic interests and tariff policies 
of the colonies stood in the way. The Federal Council of 
Australasia Act, passed by Parliament in 1885, created a Council 
with limited powers to deal with certain common interests in the 
South Pacific. There was no executive or judicial power created 
by the Act, and the Council lacked the power to raise revenue or 
expend money. Membership in the Council was optional. Yet 
the Council legislated with respect to a number of matters, and 
continued in existence till 1899. 

The sentiment in favor of federation had been steadily gaining, 


THE GOVERNMENT OF GREAT BRITAIN. 


253 


and in 1887 the question of defence added its weight when, at the 
Imperial Conference at London, Australia as a whole agreed to 
furnish an annual subsidy of £ 226,000 towards the expense of a 
separate squadron on the Australian station. Conferences were 
held in 1890 and 1891, in which resolutions were passed laying 
down the basis on which federation should take place; but it was 
not until 1897 that a convention assembled at Adelaide to frame 
a federal constitution. The proposed constitution was then sub¬ 
mitted to the legislatures of the colonies, and after consideration 
by them, the convention reassembled at Sydney to consider the 
changes which had been suggested. 

The larger colonies demanded that greater consideration should 
be given to population, and the smaller colonies sought to preserve 
their autonomy. The position and mode of election of the Senate 
was the source of the greatest difference of opinion, but finally a 
draft was agreed upon which, when submitted to the colonies, 
failed of ratification. Subsequently compromises were made to 
meet the objections, chiefly of New South Wales, and five colo¬ 
nies accepted the proposed constitution by popular vote. It was 
then forwarded to the Imperial Parliament for enactment. 
Western Australia, which had held aloof, asked for the right 
to join the federation, and in 1900 Parliament passed the 
Commonwealth of Australia Act. By proclamation the date 
of the establishment of the Commonwealth was fixed as January 
1, 1901. 

The Constitution. — The Constitution is an Act of the Im¬ 
perial Parliament, and is in legal theory subject to change by that 
body whenever it chooses, though in practice it is not probable that 
any changes would be made which were contrary to the wishes of 
the Commonwealth. The Commonwealth differs from Canada in 
its fundamentals; in the latter the provinces are far less inde¬ 
pendent of the Dominion government than are the states of the 
Commonwealth; as provinces they have no participation or 
representation in the central government whereas in the former 
the separate character of the states finds representation in the 
Senate, as in the case of the United States. Moreover, the 
powers of the Commonwealth are delegated, while in Canada it is 
the government of the Dominion which possesses the reservoir of 


254 


THE GOVERNMENT OE GREAT BRITAIN. 


powers, and the provinces have only those powers which have 
been granted to them. In Canada the lieutenant-governors of 
the provinces are appointed by the Governor-General, in Aus¬ 
tralia the governors of the states are appointed by the Crown. 
In short, Australia is far more of a federal state than is 
Canada. 

The Executive. — The Executive of the Commonwealth 
is vested in a Governor-General, appointed by the King, and his 
power extends to the maintenance of the Constitution and the 
laws of the Commonwealth, but inasmuch as responsible gov¬ 
ernment exists in the Commonwealth as it had existed and still 
exists in the individual states, the real executive power is vested 
in the ministry, which is responsible to Parliament. The min¬ 
istry constitute the Governor-General’s Executive Council, whose 
advice he must accept. The following ministries have been estab¬ 
lished in the Commonwealth : External Affairs, Attorney-General, 
Home Affairs, Treasury, Trade and Customs, Defence, and the 
Postmaster-General. There have also been ministers without 
portfolio. 

Instability of Ministries. — Both in the Commonwealth and 
in the individual states changes of ministries have been frequent, 
due to the absence of questions on which parties could divide on 
party lines. The Labor party is the only one which is effec¬ 
tively organized. There is a conspicuous absence of loyalty to 
party leaders, and as a result ministries are weak and easily 
overthrown. In the states the small size of the Parliament 
makes government more difficult, since the absence of a mem¬ 
ber or two in a small House may result in the overthrow of a 
government. 

The Parliament. — The Parliament of the Commonwealth 
is composed of a Senate and a House of Representatives. Until 
Parliament shall otherwise provide, the Senate is composed of 
six senators from each of the original states, directly chosen by 
the people of each state. The number of senators may be in¬ 
creased or diminished, but the number of senators from each of 
the original states may not be less than six, and the equality of 
their representation must be maintained. The term of senators 
is six years, and one-half retire every three years. A senator 


THE GOVERNMENT OF GREAT BRITAIN. 


255 


must be twenty-one years of age, a native-born or naturalized 
citizen, and if the latter, he must have been a citizen at least five 
years; he must be entitled to vote at the election of members of 
the House of Representatives and have been for three years a 
resident of the Commonwealth; also he must not be under cer¬ 
tain legal disabilities. 

The membership of the House of Representatives is seventy- 
five, of whom 27 are from Hew South Wales, 22 from Victoria, 
9 from Queensland, 7 from South Australia, and 5 each from 
Western Australia and Tasmania. The term of members is three 
years, unless sooner terminated by dissolution. 

The powers of Parliament are fixed by the Constitution, and 
extend in general to all powers affecting the common interests 
of all the states. Except with respect to finance bills, the Senate 
and the House have equal power over legislation. All bills for 
raising revenue or appropriating money must originate in the. 
House and cannot be amended by the Senate, but such bills may 
be returned to the House by message with the request for the 
omission or amendment of any items. The House may or may not 
accept the suggestions, as it sees fit. With respect to other legis¬ 
lation, if the Senate does not accept a bill which has passed the 
House, and if the House after an interval of three months, whether 
in the same session or the next, shall again pass the measure, the 
Governor-General may dissolve both the Senate and the House 
simultaneously; if after the dissolution the bill is again passed 
by the House and fails to pass the Senate, the Governor-General 
may convene a joint session of the two Houses, and if the bill is 
passed by a majority of the total membership of both Houses in 
joint session, it shall be taken as having been approved by Par¬ 
liament and shall go to the Governor-General for the King’s 
assent. 

The Powers of the Colonial Courts. — The action of the 
courts in the colonies on certain questions furnishes an instructive 
counterpart to the constitutional functions of our own courts. 
The colonial governments are conducted under written constitm 
tions as our own governments are, though their constitutions 
are imperial statutes, while ours are drafted by conventions and 
adopted by a vote of the people. And colonial courts exercise the 


256 


THE GOVERNMENT OF GREAT BRITAIN. 


same power of constitutional interpretation that belongs to our 
own courts and that has often been carelessly assumed to be a 
peculiar prerogative of theirs. They test acts of legislation by 
the grants of power under which they are enacted, an appeal 
lying from them to the Judicial Committee of the Privy Council 
in England, which serves as a general supreme court for the 
colonies. 

The Union of South Africa. — Before the Boer War the 
two English colonies in South Africa, the Cape of Good Hope 
and Natal, both enjoyed responsible government, and the Cape 
Colony was one of the few English colonies in which both houses 
of the legislature were elected. The terms of surrender of the 
Boer forces in the field provided that representative institutions 
should be granted to the conquered colonies of the Transvaal 
and the Orange Biver, and that at the earliest possible moment 
they should be given self-government of the usual colonial type. 
Upon the accession to power, in 1906, of the Liberal ministry 
under Sir Henry Campbell-Bannerman, the time was thought 
ripe for carrying out these terms, and so full ministerial responsi¬ 
bility for the general government of these two colonies was es¬ 
tablished by letters patent, in the Transvaal in December, 1906, 
and the Orange Biver Colony in June, 1907. 

These four English colonies in South Africa, so lately enemies, 
were faced with certain common interests and problems, which, 
despite race antagonisms and some conflicting interests, proved 
strong enough to draw them together into a union. Most press¬ 
ing of all the problems — and one still awaiting a solution — is 
that of the native races, — the menace that South Africa might 
become a black man’s country. Singly the colonies might have 
found their resources insufficient to meet a great native uprising, 
but united they are in large measure relieved from that fear. 
Bailways and tariffs were other matters demanding common con¬ 
trol and uniform action if the prosperity of all the colonies was 
to be fostered. Discrimination of one colony against the other 
created a strong incentive to union. A customs union of the 
four colonies and of Bhodesia, together with the territories 
under the administration of the High Commissioner for South 
Africa, had been formed in 1903 and was renewed in 1906. An 


THE GOVERNMENT OF GREAT BRITAIN. 


257 


Intercolonial Council for the administration of the railways of 
the Transvaal and the Orange River Colony was inaugurated in 
1902, so that the colonies were not without some experience of 
the habit and advantage of common action. The real stimulus to 
union came after the granting of self-government to the Trans¬ 
vaal and the Orange River Colony, at the conference of May, 
1908, for the revision of customs and railway rates. Delegates 
from the several colonies were selected upon the authorization of 
the four colonial governments, who took up in convention the 
discussion of a basis of unification of South Africa. The work of 
this convention was done in secret, the members well knowing 
that a public discussion of the delicate questions with which it 
was confronted would prove fatal to any hope of union. The 
results of the convention’s labors were submitted to the Parlia¬ 
ments of the colonies — and in Natal to a referendum — and after 
ratification delegates were appointed by the Parliaments to pro¬ 
ceed to England and secure the enactment by Parliament of the 
proposed plan of union. This was done, and the Union of South 
Africa Act was passed in 1909, and the Union itself was inaugu¬ 
rated on May 31, 1910. 

Plan of the Union. — The Union of South Africa differs 
fundamentally from the federal arrangements of Canada and 
Australia. In them are present the characteristic features of 
federalism — the supremacy of the constitution, the distribution 
of the powers of government among bodies of limited and co¬ 
ordinate authority, and the authority of the courts to interpret 
the constitution. Not one of these features is present in the 
Union of South Africa; the Parliament, not the constitution, is 
supreme ; power is not divided among coordinate authorities with 
limited functions, but rests ultimately in the Parliament; the 
courts have not the right to interpret the constitution by declar¬ 
ing a law unconstitutional, but their function will be identical 
with that of the courts in England. In short, the supremacy of 
the Parliament within the Union has been secured in much the 
same way, though not to the same extent as the Parliament of 
the mother country — it is subject always to the ultimate author¬ 
ity of the latter, and with respect to certain provisions of the 
constitution of the Union its power is qualified. 


258 


THE GOVERNMENT OF GREAT BRITAIN. 


As in Canada and Australia, the constitution of the Union is 
an Act of Parliament which legally may be changed by a Parlia¬ 
mentary Act, though in practice any change without the consent 
of the Union would be bitterly opposed as in the like case in 
Canada and Australia. 

This supremacy of the Parliament of the Union has been gen¬ 
erally approved in South Africa because of the belief in the 
need for a strong central government to meet the grave questions 
confronting it An interesting feature accompanying the con¬ 
summation of union in South Africa was the abolition of the 
previous governmental institutions of the colonies, and the insti¬ 
tution by the Union of South Africa Act of a new framework of 
government within each colony. 

The Executive. — The executive power is vested in the 
King and may be exercised by the King in person, or by a 
Governor-General as his representative, who shall be appointed 
by the King and hold office at his pleasure. Subject to the pro¬ 
visions of the Act, the Governor-General shall exercise such 
powers and functions as may be assigned him by the King. The 
salary of the Governor-General is fixed at ten thousand pounds, 
and shall not be altered during his continuance in office. 

Executive Council. — The Governor-General is to be 
advised by an Executive Council, the members of which shall be 
appointed and summoned by him, and shall hold office during his 
pleasure. The real executive power is vested in the Governor- 
General in Council, which means the Governor-General acting 
with the advice of the Executive Council. 

The Ministers. — The number of ministers is by the Act 
set at ten, who are appointed by the Governor-General, hold office 
at his pleasure, are members of the Executive Council, and who 
administer the departments of state. No minister shall hold 
office for a longer period than three months, unless he is or 
becomes a member of either House of Parliament. The minis¬ 
tries established are those of Agriculture, Interior, Mines and 
Defence, Native Affairs, Education, Finance, Lands, Public 
Works, Posts and Telegraphs, Kail ways and Harbors, Justice^ 
and Commerce and Industries. A minister has the right to sit 


THE GOVERNMENT OF GREAT BRITAIN. 


259 


and speak in both Houses, but may vote only in the one of which 
he is a member. 

All powers, authorities, and functions which had previously 
been exercised by the executive authorities of the separate col¬ 
onies were conferred upon the Governor-General in Council, unless 
otherwise provided by the Act. The seat of the executive gow 
ernment was located at Pretoria. 1 

The Parliament.—The legislative power of the Union 
was vested in a Parliament, consisting of the King, a Senate, and 
a House of Assembly. The Governor-General may appoint such 
times as he sees fit for holding the sessions of Parliament, and he 
may prorogue Parliament and may dissolve both Houses simul¬ 
taneously, or the House of Assembly alone. But the Senate may 
not be dissolved within a period of ten years after the estab¬ 
lishment of the Union, and no dissolution of the Senate shall 
affect Senators nominated by the Governor-General in Council. 
Parliament shall meet at least once a year. 

The Senate. — For ten years after the establishment of 
the Union the Senate shall be composed of eight Senators* nomi¬ 
nated by the Governor-General in Council, and for each province 
eight Senators shall be elected. Half of the Senators appointed 
by the Governor-General shall be selected on the ground of their 
thorough acquaintance with the reasonable wants and wishes of 
the colored races of South Africa. The elected Senators were 
chosen before the date of union by the two Houses of the Par¬ 
liament of each colony, sitting together as one body on the prin¬ 
ciple of proportional representation with a single transferable 
vote, and presided over by the Speaker of the Legislative Assem¬ 
bly. The term of Senators is ten years, and vacancies among 
the appointed Senators shall be filled by the Governor-General in 
Council, and among the elected Senators by the Provincial Coun¬ 
cil of the Province from which such Senator had been chosen. 

Parliament may provide for the manner in which the Senate 

1 The local rivalries of the colonies led to the unique arrangement of locat¬ 
ing the three departments of government in three different places — the 
executive in Pretoria, the legislative in Cape Town and the judicial ip 
Bloemfontein. 


260 


THE GOVERNMENT OF GREAT BRITAIN. 


shall be constituted after the expiration of ten years, but until 
otherwise determined, the provisions respecting appointed Sena¬ 
tors shall continue in force; the elected Senators shall be chosen 
by the Provincial Council and the House of Assembly in each 
Province, and shall hold office for ten years unless the Senate be 
sooner dissolved. 

Qualifications of Senators. — A Senator must be not less 
than thirty years of age, must be qualified to be registered as a 
voter for the election of members of the House of Assembly of 
one of the provinces, must have resided for five years within the 
limits of the Union at the time when he is elected or appointed, 
must be a British subject of European descent, and in the case of 
an elected Senator must be the registered owner of immovable 
property within the Union of the value of not less than five 
hundred pounds over and above any special mortgages thereon. 

House of Assembly. — Membership in the House of 
Assembly rests upon election by the voters of the Union, and 
members were allotted to the provinces as follows: Cape of 
Good Hope, 51; Natal, 17; Transvaal, 36; Orange Free State, 
17. The number is subject to increase upon the basis of the 
census taken every five years beginning in 1911, until it reaches 
one hundred and fifty, but until that number is reached, or until 
a period of ten years has elapsed after the establishment of the 
Union, the number of representatives of any of the four original 
provinces may not be decreased. Thereafter, however, the rep¬ 
resentation shall be based upon the European male adults. Qual¬ 
ifications of electors shall be determined by Parliament, with the 
exception that no law shall disqualify any person in the province 
of the Cape of Good Hope, qualified by its laws, by reason of 
race or color only, unless the bill be passed by both Houses of 
Parliament sitting together and be agreed to by not less than 
two-thirds of the total number of members of both Houses, and 
no registered voter shall be removed from the register solely by 
reason of race or color. These exceptions were for the protec¬ 
tion of the black voters of the Cape Colony. 

The qualifications for members of the House of Assembly are 
the same as those for the Senate, except for the age and property 
requirements. 


THE GOVERNMENT OF GREAT BRITAIN. 


261 


The House of Assembly shall, unless sooner dissolved by the 
Governor-General, continue for five years from the date of first 
meeting, but no longer. 

Powers of Parliament. — Parliament has the supreme 
legislative authority for the Union, and it is its duty to make 
laws for the peace, order, and good government of the Union. 
The two Houses do not, however, stand upon an equal footing 
in the matter of legislation. All bills appropriating money or 
raising revenue must originate in the House of Assembly, and 
may not be amended so far as they are for the services of the 
government, and may not increase any proposed burden or 
charges upon the people. The House may not appropriate 
money unless such appropriation has been recommended by 
message from the Governor-General in the same session. 

If the Senate fails to pass any bill passed by the House and 
if the bill is passed by the House in the next session, the Gov¬ 
ernor-General may during that session convene a joint session 
of the two Houses, and the bill, if passed by a majority of the 
Houses in joint session, shall become a law. In the case of 
money bills the Governor-General may convene the joint sitting 
during the same session. 

Bills must be presented to the Governor-General, who may 
declare that he assents in the King’s name, or that he withholds 
assent, or that he reserves the bill for the signification of the 
King’s assent. Bills touching the House of Assembly, abolish¬ 
ing provincial councils, or abridging the powers conferred by the 
Act of Union upon provincial councils, must be reserved. 

The King may within one year disallow any bill to which 
the Governor-General has given assent, and bills reserved for the 
King’s pleasure shall have no force unless within a year the 
Governor-General shall make known to each of the Houses or by 
proclamation that the King’s assent has been given. 

The Provinces. — The executive power in each of the 
provinces is in the hands of an administrator, appointed by the 
Governor-General in council, who shall hold office for five years 
and who shall not be removed except by the Governor-General 
for cause assigned. The legislative power in the provinces is 
vested in an elective council which meets annually and shall con- 


262 


THE GOVERNMENT OF GREAT BRITAIN. 


tinue for three years from the date of its first meeting. The 
administrator may prorogue but may not dissolve the council. 
Each provincial council chooses an executive committee of four 
members, from among its members or otherwise, who, together 
with the administrator, shall carry on the administration of pro¬ 
vincial affairs. The powers of the provincial council are defined 
by the Act of Union, and may be said broadly to deal with the 
local affairs of the province, and any ordinance made by a pro¬ 
vincial council shall have effect as long and as far only as it is not 
repugnant to any Act of Parliament. 

The Crown Colonies. — All those colonies which have 
not responsible self-government are classed as Crown colonies, 
colonies more or less completely directed by the Colonial Office 
in London. They range in organization all the way from mere 
military administrations, such as have been established in St. 
Helena and Gibraltar, through those which, like Trinidad and 
the Straits Settlements, have both a nominated Executive and a 
nominated Legislative Council, and those like Jamaica, whose 
nominated Executive is associated with a Legislative Council in 
part elected, to those like the Bahamas and Bermuda, in which 
the Councils are altogether elected, but which have no respon¬ 
sible ministry. 

Powers of Colonial Governors. — It is interesting to have 
the testimony of one of the most capable and eminent of English 
colonial administrators as to the relative desirability of the post 
of governor in a colony in which he is governor indeed, with no 
ministers empowered to force their advice upon him, and in a 
colony where he must play the unobtrusive part of constitutional 
monarch. Lord Elgin says with great confidence, in his Letters , 
that his position as governor of Canada was a position of greater 
official power than his position, previously held, as governor of 
Jamaica. He declares his unhesitating belief that there is “ more 
room for the exercise of influence on the part of the governor ” 
in such a colony as Canada, where he must keep in the back¬ 
ground, and scrupulously heed his ministers, than under any other 
arrangement that ever was before devised, although his influence 
there is of course “ wholly moral — an influence of suasion, sym¬ 
pathy, and moderation, which softens the temper while it ele- 


THE GOVERNMENT OF GREAT BRITAIN. 


263 


vates the aims of local politics.” 1 This is but another way 
of stating the unquestionable truth that it is easier, as well 
as wiser, to govern with the consent and cooperation of the 
governed than without it, — easier to rule as a friend than as 
a master. 

India. — India stands in matters of government, as in so 
many other respects, entirely apart from the rest of the British 
Empire. 2 It is governed, through the instrumentality of its 
Governor-General and his Council, directly from London by a 
member of the Cabinet, the Secretary of State for India. The 
Secretary of State is assisted by a Council of ten or more mem¬ 
bers appointed by the Crown from among persons who have 
resided or served in India. Acting under the Secretary of State 
and his Council in London, there is the Governor-General of 
India, who is also assisted by a Council of from five to six mem¬ 
bers, appointed by the Crown, — a Council which is first of all 
administrative, but which, when reenforced by additional members 
nominated by the Governor-General or elected under the Indian 
Councils Act of 1909, has also the functions of a legislative 
council. 

The work of the Governor-GeneraPs Council is divided among 
ten departments, one of which, that of foreign affairs, is generally 
kept in the hands of the Governor-General himself. These de¬ 
partments do not constitute a ministry; they are regarded simply 
as committees of the Council. 

The sessions of the legislative council are held always in public. 
The number of members is 68, of whom 36 are official and 32 
are non-official, which secures to the government the control of 
the action of the council. Special provision is made for repre¬ 
sentation of the Mohammedan part of the population. The legis¬ 
lative council makes laws, subject to some restrictions, for all 
persons in British India, for all British subjects in native states, 
and for all native Indian subjects in any part of the world. 

Not all of India is directly administered by the English 
government. There are numerous native states which act with 

1 Letters and Journals of Lord Elgin , ed. by Theodore Walrond, London, 
1872, p. 126. 

2 The Government of India Act, 1915, as amended by a like Act in 1916. 


264 


THE GOVERNMENT OF GREAT BRITAIN. 


substantial independence in local affairs, though under English 
overlordship and control. Such part of the vast territory as 
is administered directly by English officials is divided into 
fifteen provinces, of which the chief in importance are under 
governors who are appointed by the Crown and are assisted, 
as the Governor-General is, by two councils, administrative and 
legislative. Lieutenant-Governors, appointed by the Governor- 
General, and assisted by similar councils, preside over the 
provinces next in importance. The Commissioners or agents 
of the other provinces, who are also appointed by the Governor- 
General, also have their councils. In all provincial legislative 
councils the majority is elected. 

There has been a growing demand in India for a larger partici* 
pation on the part of Indians in the government of India, and, 
among a few, a feeling of nationality. 

In 1885 there was held the first Indian national Congress, and 
in the succeeding Congresses there has been a considerable agita¬ 
tion in favor of throwing off British rule and of establishing a 
national Indian state. The nationalists are Hindus, and the in^ 
terests of the Moslem part of the population were not cared for 
by their program. In 1906 the All-India Moslem League was 
founded on the basis of complete loyalty to the Crown. 

The war has produced profound changes in the situation. The 
princes have contributed largely of men and money to aid in its 
prosecution, and thousands of Indians have been organized into 
labor units for work in various parts of the world. 

The Government of India Act of 1915 confers a larger partici¬ 
pation in affairs of the government upon native Indians, and 
Indians may now become officers in the British army. India also 
is represented in the Imperial War Conference. 

The policy of the present British government toward India was 
stated by the Secretary of State for India in the House of Com¬ 
mons on August 20, 1917, as follows: “The policy of His Maj¬ 
esty’s government ... is that of the increasing association of 
Indians in every branch of the administration, and the gradual 
development of self-governing institutions, with a view to the 
progressive realization of responsible government in India as an 
integral part of the British Empire.” 


THE GOVERNMENT OF GREAT BRITAIN. 


266 


Greater Britain. — Greater Britain, the world of English 
colonies, differs very materially from Greater Greece, the wide¬ 
spread Hellas of the ancient world. Hellas was disintegrate : 
the Greeks carried with them, as of course, Greek institutions, 
out only to allow those institutions wide differentiation. In no 
way did Greek settlement signify race integration or a national 
nexus of rule. Englishmen, on the contrary, in English colonies, 
maintain a homogeneity and integration both of race and of in¬ 
stitutions which have drawn the four parts of the world together 
under common influences, if they have not compacted them for 
a common destiny. Throughout Europe reformers have copied 
English political arrangements; the colonists have not copied 
them, they have extended and are perpetuating and perfecting 
them. 

Imperial Unity or Federation. — For the past fifteen 
years there has been much discussion of the future relations of 
the Dominions to the mother country and the means by which 
they might be drawn closer together. The Dominions felt a grow¬ 
ing desire to participate actively in the decision of questions 
affecting imperial interests, particularly in view of the contribu¬ 
tions they were making to the Imperial defence, but nothing 
beyond Colonial and Imperial Conferences had been achieved. 
At the outbreak of the war the Dominions responded instantly to 
the need of the mother country, and their efforts in the war have 
been worthy of the best traditions of Englishmen. The war has 
shown them their need of defence by the United Kingdom, and 
the latter has received with gratitude the assistance so loyally 
given. 

On the part of the United Kingdom there has been practical 
acknowledgment of the need to draw the mother country and the 
Dominions into closer relations and a participation by the latter 
in the decisions affecting Imperial questions. A War Conference 
was summoned in 1917 to which the Premiers of the Dominions 
were invited, and all sent representatives with the exception of 
Australia. In 1916 the visiting Premiers had been asked to sit 
at special meetings of the general Cabinet Council, but in 1917 
Lloyd George went further and took the Premiers into the inner 
War Cabinet of five members which he had constituted upon 


266 


THE GOVERNMENT OF GREAT BRITAIN. 


assuming the position of Prime Minister. It was decided to hold 
meetings annually, or oftener if need be, “ to discuss foreign 
affairs and other subjects of Imperial policy.” The Imperial 
Cabinet for the future should consist of the Prime Minister of 
the United Kingdom and such of his colleagues as dealt specially 
with Imperial affairs, the Prime Minister of each of the Domin¬ 
ions or a special representative clothed with equal authority, and 
a representative of the Indian people appointed by the govern¬ 
ment of India. 

What shape the closer relation between the United Kingdom 
and the Dominions should take was left for determination after 
the War. 

Representative Authorities. 

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Bagehot, Walter, The English Constitution, London, 1867; N.Y., 
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Bourinot, John G., Federal Government in Canada (Johns Hopkins 
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Boutmy, Emile, The English Constitution, trans. out of the French by 
Isabel M. Baden; and Studies in Constitutional Law, trans. by 
E. M. Dicey. Both, London, 1891. 

Brand , R. II., The Union of South Africa, Oxford, 1909. 

Burgess , J. W., Political Science and Constitutional Law, 2 vols., 
Boston, 1890. 

Cameron , E. R., The Canadian Constitution, Winnipeg, 1915. 

Clark , W. Inglis, Australian Constitutional Law, Melbourne, 1901. 
Clement , The Law of the Canadian Constitution, 3d ed., Toronto, 1916. 
Cdbden Club Essays, 1882: Local Government and Taxation in the 
United Kingdom. London. 

Dicey, A. V., The Privy Council, London, 1887; and The Law of the 
Constitution, 8th ed., London, 1915. 

Dilke, Sir C. W., Problems of Greater Britain, London, 1890. 

Dupriez, L., Les Ministres dans les principaux Pays d’Europe et d’AmA 
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Egerton and Grant, Canadian Constitutional Development, London, 
1907. 

Egerton, Confederations and Unions. 


THE GOVERNMENT OF GREAT BRITAIN. 


266 a 


English Citizen Series: H. D. Traill, Central Government. 

M. D. Chalmers, Local Government. 

F. W. Maitland, Justice and Police. 

S. Walpole, The Electorate and the Legislature. 

T. W. Fowle , The Poor Law. 

Gneist, R., History of the English Constitution, 2 vols., N.Y., 1886; 
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in Vergleichung mit dem deutschen Verwaltungswesen, 3d ed., 
2 vols., 1883-1884. 

Goodnow, F. J., Comparative Administrative Law, 2 vols., New York, 
1893. 

Hallam, H., Constitutional History of England, 2 vols., N.Y., 1880. 

Hearn , W. E., The Government of England, 2d ed.. London, 1887. 
llbert, Courtenay, Parliament, N.Y., 1911. 

Imperial Parliament Series: Local Administration, by W. Rathhone, 
A. Pell and F. C. Montague , London, 1885. 

Keith , A. B., Responsible Government in the Dominions, 3 vols., Oxford, 
1912; and Imperial Unity and the Dominions, Oxford, 1916. 

Lefroy , A. H. F., Canada’s Federal System, Toronto, 1913. 

Low, Sydney, The Government of England, Rev. ed., London, 1914. 
Lowell , A. L., The Government of England. 

Macy , Jesse, The English Constitution, London and N.Y., 1907. 

May , Sir T. E., Constitutional History of England, 3 vols., N.Y., 1912. 
Mcllwain , C. H., The High Court of Parliament, Yale University Press, 
1910. 

Moore , W. H., The Constitution of the Commonwealth of Australia, 
London, 1902. 

Munro, J. E. C., The Constitution of Canada, Cambridge University 
Press, 1889. 

Munro , W. B., The Government of European Cities, N.Y., 1909. 

Ogg, F. A., The Governments of Europe, N.Y., 1913. 

Quick and Garran , Constitution of the Commonwealth of Australia. 
Redlick and Hirst, Local Government in England, 3 vols., London, 1903. 
Riddell , W. R., The Constitution of Canada in its History and Practical 
Working, Yale University Press, 1917. 

Shaw , Albert, Municipal Government in Great Britain, N.Y., 1895. 
Stubbs, William, Constitutional History of England, 3 vols., Oxford, 
1883. 

Taswell-Langmead, L., English Constitutional History, London and 
Boston, 3d ed., 1886, 


266 b 


THE GOVERNMENT OF GREAT BRITAIN. 


Taylor , Hannis, The Origin and Growth of the English Constitution, 
2 vols., Boston, 1889 and 1898. 

Todd , Alpheus, Parliamentary Government in England, new ed., Lon¬ 
don and N.Y., 1888-1889; and Parliamentary Government in the 
British Colonies, 2d ed., London, 1894. 

Local Government Reforms: 

Baker , Charles E., The Local Government Act, 1888, with Notes and 
Index, London, 1888. 

Jenks, Edward, An Outline of English Local Government, London, 
1894. 

Ryde, Walter C., The Local Government Act, 1894, London, 1894. 


IX. 


THE GOVERNMENT OF THE UNITED STATES. 

The English Occupation of America. — The political in¬ 
stitutions of the United States are in the main the political insti¬ 
tutions of England, transplanted by English colonists to a new 
soil and worked out through a fresh development to new and 
characteristic forms. Though they now show so large an ad¬ 
mixture of foreign blood, the main stock of the people of the 
United States is still of British extraction. For several genera¬ 
tions the settlements of New England and the South contained 
scarcely any other element. In the North, in what is now 
Canada, and at the mouth of the Mississippi, there were French 
settlements; in Florida there were colonists from Spain; the 
Dutch had settled upon the Hudson and held the great port at 
its mouth; and the Swedes had established themselves on the 
Delaware: all along the coast there was rivalry between the 
western nations of Europe for the possession of the new conti¬ 
nent. But by steady and for the most part easy steps of aggres¬ 
sion the English extended their domain and won the best regions 
of the great coast. New England, Virginia, and the Carolinas 
were never seriously disputed against them; and, these once 
securely taken possession of, the intervening foreigner was 
soon thrust out: so that the English power had presently a 
compact and centered mass which could not be dislodged, and 
whose ultimate expansion over the whole continent it proved im¬ 
possible to stay. England was not long in widening her colo¬ 
nial borders. The French power was crushed out in the North, 
the Spanish power was limited in the South, and the colonies had 
only to become free to develop energy more than sufficient to 

267 


268 THE GOVERNMENT OF THE UNITED STATES. 

make all the most competed-for portions of the continent thor¬ 
oughly English, — thoroughly Anglo-American. 

Adaptation of English Institutions. — This growth of the 
English power in America involved a corresponding expansion of 
English institutions. As America became English, English institu¬ 
tions in the colonies became American. They adapted themselves 
to the new conditions and the new' conveniences of political life 
in separate colonies, — colonies struggling at first, then expanding, 
at last triumphing; and without losing their English character 
gained an American form and flavor. Some institutions set up in 
New England the men wdio formed Plymouth had doubtless 
learned to know and to like while they were exiles in Holland; 
but they brought nothing with them that was not suitable to 
English habit. 

It would be misleading to say that the English planted 
states in America. They planted small isolated settlements, and 
these settlements grew in their own way to be states. The slow 
process was from local, through state, to national organization. 
And not everywhere among the English on the new continent was 
the form of local government at first adopted the same: there was 
no invariable pattern, but everywhere, on the contrary, a sponta¬ 
neous adjustment of political means to place and circumstance. 
By all the settlements alike English precedent was followed, but 
not the same English precedent. Each colony, with the true Eng¬ 
lish sagacity of practical habit, borrowed w r hat was best suited to 
its own situation, and originated what it could not borrow. New 
England had one system, Virginia another, New Jersey and Penn¬ 
sylvania still a third, compounded after a sort of the other two. 

The New England Colonies. — In New England the centre 
of government was always the town, with its church and school- 
house and its neighborly cluster of houses gathered about these. 
The soil on the coast where the first settlers established themselves 
was shallow and slow to yield returns even to hard and assiduous 
toil; the climate was rigorous, with its long winters and bleak 
coast winds; every circumstance invited to close settlement and 
trade, to the intimate relationships of commerce and the advent¬ 
ures of sea-faring rather than to tl\e wide-spreading settlements 
characteristic of an agricultural population. 


THE GOVERNMENT OF THE UNITED STATES. 


269 


The first New Englanders, moreover, were most of them 
religious refugees. They had left the Old World to escape the 
Old World’s persecutions and in order to find independence of 
worship; they were establishing a church as well as a community; 
they acted as organized congregations; their life was both spiritu¬ 
ally and temporally organic. Close geographical association, 
therefore, such as was virtually forced upon them by the con¬ 
ditions of livelihood by which they found themselves constrained, 
accorded well with their higher social purposes. The church 
could be made, by such association, the vital nerve-centre of their 
union: the minister was the ruling head of the community, and 
church membership was in several of the settlements recognized 
as identical with citizenship. 

The Separate Towns.—The several parts of the New 
England coast were settled by independent groups of settlers. 
There was the Plymouth colony at Plymouth, and altogether 
distinct from it, the Massachusetts Bay colony at Salem and 
Charlestown and Boston. To the south of these, founded by 
men dissatisfied with the Massachusetts government, were Ports¬ 
mouth, Newport, and Providence, in what is now Khode Island. 
On the Connecticut river other wanderers from Massachusetts 
built Hartford and Windsor and Wethersfield. Saybrook, at the 
mouth of the Connecticut river, was settled direct from England; 
so also was the colony of New Haven, on the coast of Long Island 
Sound west of the Connecticut. From year to year the planting 
of towns went diligently on: almost every town became the pro¬ 
lific mother of towns, which either sprang up close about it and 
retained a sort of dependence upon it, or, planted at a distance, 
ventured upon an entirely separate life in the wilderness. 

Union of the Towns. — Gradually the towns of each 
of the general regions mentioned drew together into the colonies 
known to later times, the colonies which were to form the Union. 
Plymouth merged in Massachusetts; Portsmouth, Newport, and 
Providence became but parts of Rhode Island; New Haven was 
joined to Connecticut. But at first these larger colonies were 
scarcely more than town leagues. It sometimes happened that 
each town retained unaltered its separate organization and its vir* 


270 THE GOVERNMENT OF THE UNITED STATES. 

tual independence in the regulation of its own local affairs. In 
Rhode Island, particularly, their jealousy of each other and theii 
reluctance to expose themselves to anything like a loss of perfect 
autonomy long kept the common government which they most of 
the time maintained at a balance between union and dissolution. 
In the other New England colonies the same influences manifested 
themselves, though in a less degree. The town system which 
everywhere prevailed was by its nature an extremely decentralized 
form of government: government, so to say, came to a separate 
head in each locality: and the chief vitality was in the self-gov¬ 
erning units of each group rather than in the bonds which con¬ 
nected them with each other. 

Forms of Town Government. — The form of town govern¬ 
ment was everywhere such as it was quite natural that Englishmen 
should have set up. The names of the town officers were borrowed 
from the borough governments at home, and their duties were, as 
nearly as circumstances permitted, the same as the duties of the 
officers whose names they bore. The New England town was, at 
the same time, in many of its most important and characteristic 
features, rather a reversion to older types of government than a 
transplanted cutting of the towns which the settlers had left 
behind them in the England of the seventeenth century. There 
was in it none of the elaborated class privilege that narrowed the 
town governments of the England of that time. All the towns¬ 
men met in town-meeting and there elected their officers: those 
officers were responsible to them and always rendered careful 
account of their actions to the body which elected them. Gen¬ 
erally the most important of these officers were called Selectmen, 
— men selected by the town-meeting to carry on the necessary 
public business of the community, — and these Selectmen stood in 
the 'closest relations of counsel and responsibility to the town¬ 
meeting. In the earliest times the franchise was restricted, in 
Massachusetts and New Haven at least, to those who were church 
members, and many were excluded by this rule from participation 
in the government; but even under such circumstances there was 
real and effective self-government. The towns lacked neither 
vitality nor energy, for they did not lack liberty. In the late 
days when great cities grew up, the simple township system had 


THE GOVERNMENT OF THE UNITED STATES. 271 

to be abandoned in part; as the colonies expanded, too, the^ 
gained in energy and vitality as wholes, and their component 
parts, the towns, fell by degrees to a place of less exclusive im¬ 
portance in colonial affairs; but this basis of the township was 
never lost and has remained to the present day the foundation of 
local government in New England. 

Colonial Organization.—As the towns came together 
into the groupings which constituted the later colonies other areas 
of government naturally came into use. Townships were, for 
judicial purposes, combined into counties, and by various other 
means of organization a new nexus was given to the several parts 
of the now extended state. From the first the colonists had their 
‘general courts,’ their central legislative assemblies representa¬ 
tive of the freemen. To these assemblies went delegates from 
the several towns comprised in the colony. As the colonies grew, 
their growth but strengthened their assemblies: it was in the 
common ruling function of these that the union of the several 
parts of each colony was made real and lasting. 

The sheriffs of the counties of colonial Massachusetts were ap¬ 
pointed by the Governor. The development of the county organization 
brought into existence, too, Justices of the Peace who met in Quarter Ses¬ 
sions, afterwards called ‘General Sessions,’ and who were the general 
county authority quite after the fashion of the mother country. 1 

The Southern Colonies. — To this picture of the political 
institutions of colonial New England political and social organi¬ 
zation in the Southern colonies offered many broad contrasts. 
The settlers in Virginia were not religious refugees: they had 
come out for a separate adventure in political, or rather in social, 
organization, but not for a separate venture in religion; and the 
coast they happened upon, instead of being rugged and bleak, was 
low and fertile, with a kindly climate, deep rivers, broad stretches 
of inviting country, and a generous readiness to yield its fruits in 
their season. They had been sent out by a Company (the ‘ Vir¬ 
ginia Company ’ it was called) in England, to which the Virginia 
territory had been granted by the Crown, and they had no thought 

1 See Tovm and County Government in the English Colonies of North 
America , by Edward Channing, Johns Hopkins University Studies in His¬ 
torical and Political Science, 2d Series, pp. 40-42. 


272 the government of the united states. 

but to live under the governors whom the Company had placed 
over them. They founded Jamestown some hundred miles 
above the mouth of the James river; but Jamestown was in no 
way like the New England towns, and it soon became evident 
that town life was not to be the characteristic habit of the colony. 
The rich soil invited to agriculture, the numerous rivers, full and 
deep, stood ready to serve as natural highways, and as the popu¬ 
lation of the colony increased it spread far and wide along the 
courses of the rivers. 

Contrasts of Character. — There was much more, besides 
soil and climate and the differing conditions of settlement, that 
made the Southern colonies unlike the colonies of New England. 
The New Englanders came for the most part out of the town and 
village population of the mother country : out of a very distinctly 
marked middle class with common motives and ideals: the 
more distinctly marked because most of them had had the same 
experiences and were of the same way of thinking in matters of 
religion. They naturally drew together for the sort of life they 
had left behind them over sea. The settlers of the Southern 
colonies, on the contrary, came from no single class and had no 
common habit, — except the general habit of the English race. 
They had been taken by fortune, as if at haphazard, out of the 
general mass of Englishmen at home, some gentle, some common, 
some bred to comfort, some not, all bent upon an independent 
life and carrying in their purpose the general ideals of their race. 
Prominent among these ideals, no doubt, was this, that a gentle¬ 
man must live with space of good acres about him, a lord of the 
soil. The life of the Southern colonists was not more English 
than that of the New Englanders; but it was much more of the 
general pattern of English life, and more likely to keep near the 
models set up by English gentlemen outside the towns. There 
came a time, too, when Virginia received a strong infusion of 
Cavalier blood, and men came to her quiet lands who had the 
air and habit of courts, the ambitions of men of caste and estate; 
not a little of the color of English country life went out of them 
into all the ways of the broad tide-water properties; and the 
genial air told kindly upon the new fashions. Virginia grew 
more than ever like rural England ; and followed the new ways 


THE GOVERNMENT OF THE UNITED STATES. 273 


until the Scots-Irish came into the valley, to add another quality 
and the spice of variety. Alike in the North and in the South, 
climate, soil, and every natural quality of the region chosen 
fitted the instinct of the settlers. Both lived after their kind. 

Expansion without Separation. — There would appear to 
have been no idea of organic separation in this southern process of 
expansion, as there was so often in the spreadings of the New Eng¬ 
land colonists. Great plantations indeed grew up with an almost 
entirely separate life of their own, with their own wharves on the 
river fronts and their own direct trade with the outer world by 
vessels which came and went between them and England, or be¬ 
tween them and the trading colonies to the north; but all this 
took place without any idea of organic political separateness. 
This diffused agricultural population, thus living its own life on 
the great rural properties which steadily multiplied in all direc¬ 
tions, still consciously formed a single colony, living at first 
under the general government of the Company which had sent 
out the first settlers, and afterwards, when the Company had 
been deprived of its charter and possessions, under the authority 
of royal governors. Its parts hung loosely together, it is true, 
but they did not threaten to fall apart: the plan was expansion, 
not segregation. 

Southern Colonial Society. — The characteristics of the 
society formed under such circumstances were of course very 
marked. Slaves were early introduced into the colony, and 
served well to a-id and quicken the development of the planta¬ 
tion system. A great gap speedily showed itself between the 
owners of estates and the laboring classes. Where slavery ex¬ 
ists manual toil must be considered slavish and all the ideas on 
which aristocracy are founded must find easy and spontaneous 
rootage. Great contrasts of condition soon appeared, such as 
the more democratic trading communities of New England were 
not to know until the rise of the modern industrial organization; 
and the governing power rested with the powerful, propertied 
classes. 

Government of Colonial Virginia. — The government of 
colonial Virginia bore, in all its broader features, much the same 
character as the rural government of England. Organization was 


274 THE GOVERNMENT OF THE UNITED STATES. 


effected through a machinery of wide counties, instead of by 
means of compacted townships. There was at the head of each 
county, under this first order of things, a Lieutenant whose duties 
corresponded roughly with those of the Lords Lieutenant in Eng¬ 
land. The other important executive officer of the county, too, 
in Virginia as in England, was the Sheriff. The Lieutenant was 
appointed by the Governor, was chief of the military (militia) 
organization of the county, and, by virtue of his membership 
in the Governor’s Council, exercised certain judicial functions 
in the county. The Sheriff also was appointed by the Gov¬ 
ernor, upon the nomination of the Justices of the county. His 
duties an English sheriff would have regarded as quite normal. 
And added to these officers there was, as in England, a ‘commis¬ 
sion of the peace,’ a body of justices or commissioners authorized 
to hold county court for the hearing of all ordinary cases not of 
grave import; authorized to levy the county taxes, to appoint 
surveyors of highways, to divide the county into precincts; 
empowered to act as the general administrative authority of 
the county in the management of all matters not otherwise as¬ 
signed. The Episcopal church had the same official recognition 
in Virginia as in England and contributed the same machinery, 
— the machinery of the vestry, — to local government. Even 
the division of the ‘hundred’ was recognized, so close was the 
outline likeness between the institutions of the mother country 
and those of her crude child in the west. The system was un¬ 
democratic, of course, as was its model: “ the dominant idea,” 
as Mr. Ingle says, “ was gradation of power from the Governor 
downward , not upward from the people.” 1 The Justices, like 
the other officers of the county, were appointed by the Governor, 
and held only during his pleasure : the whole system rested upon 
a frank centralization. But still there was liberty. There was 
strong local feeling and individual pride to counteract the sub¬ 
serviency of the officers: those officers showed a more or less 
self-respecting independence in their administration; and at 
least the spirit of English self-government was kept alive. 

1 Local Institutions in Virginia, by Edward Ingle, Johns Hopkins Uni¬ 
versity Studies in Historical and Political Science, 3d Series, p. 97 (con¬ 
tinuous, p. 199). 


THE GOVERNMENT OF THE UNITED STATES. 275 

Virginia’s Colonial Assembly. — The vital centre of the 
political life of the colony was her representative assembly. So 
early as 1619, only twelve years after the foundation of the colony 
(1607), the Virginia Company, then still in control, had called 
together in the colony, through its governor, an assembly repre¬ 
senting the several plantations then existing, which were in this 
way treated as independent corporations entitled to a represent¬ 
ative voice in colonial affairs. Later years saw the Assembly 
developed upon the basis of a representation by towns, hundreds, 
and plantations: and even after the governors sent out by the 
Company had been supplanted by royal governors this represent¬ 
ative body, this House of Burgesses, as it came to be styled, 
continued to exist, and to wax strong in control. It was some 
time before the area of the colony justified that broader division 
into counties which was so characteristic of later days, and which 
changed very radically the system of representation. The 
‘ towns ’ and i plantations ’ of the early days seem to have been 
[mown, at any rate for purposes of representation, as ‘ boroughs/ 
and the representative house got its name, ‘ House of Burgesses,’ 
before county representation grew up. The first Assembly, that 
of 1619, sat in joint session with the Governor and his Council, 
but the more fully developed assembly of later times sat apart 
as a distinct and independent body. It was this elective repre¬ 
sentation in the government of the colony which made and kept 
Virginia a vital political unit, with a real organic life and feeling. 

The Constitutions of the other Southern Colonies corre¬ 
sponded in the main with the constitution of Virginia. They, 
too, had the county system and the general representation in a 
central assembly, combined with governors and councils ap¬ 
pointed by the Crown. All save Maryland. Her constitution 
differed from the others mainly in this, that in place of the king 
stood a ‘ proprietor,’ to whom the fullest prerogatives of govern¬ 
ment had been granted. 

The Middle Colonies had a mixed population. New 
York had been New Netherland, and the Delaware had been 
first settled by the Swedes and then conquered by the Dutch. 
When the territory which was to comprise New York, New 
Jersey, Delaware, and Pennsylvania fell into the hands of the 


276 THE GOVERNMENT OF THE UNITED STATES. 

English, the foreign element was not displaced but merely domi¬ 
nated; and to a large extent it kept its local peculiarities of 
institution. For the rest, the English settlers of the region 
followed no uniform or characteristic method of organization. 
The middle colonies, though possessed of a rich soil, had also 
fine seaports which invited to commerce; their climate was 
neither so harsh as that of New England, nor so mild and be¬ 
guiling as that of the southern colonies. Their people were of 
all sorts and origins. They built towns and traded, like the 
people of New England; they also spread abroad over the fertile 
country and farmed, like the people of Virginia. They did these 
things, moreover, without developing either the town system of 
New England or the plantation system of Virginia. Townships 
they had, but counties also; they were simple and democratic, 
like the New Englanders, and yet they were agricultural also, 
like the Virginians: in occupation and political organization, as 
well as in geographical situation, they were midway between 
their neighbors to the north and south. 

The Charters: Massachusetts. — The political relations 
of the colonies to the mother country during the various develop¬ 
ments of which I have spoken were as various as their separate 
histories. The three New England colonies, Massachusetts, 
Rhode Island, and Connecticut, possessed charters from the 
king which virtually authorized them to conduct their own 
governments without direct interference on the part of the 
Administration at home. During the first years of English 
settlement on the American coast it had been the practice of 
the government in England to grant territory on the new 
continent to companies like the Virginia Company of which I 
have spoken, — grants which carried with them the right of 
governing the new settlements subject only to a general super¬ 
vision on the part of the home authorities. The colony of 
Massachusetts Bay was established under such an arrangement: 
a Company, to which special privileges of settlement and govern¬ 
ment had been granted, sent out colonists who founded Salem 
and Boston; but the history of this Company was very different 
from the history of the Virginia Company. The Virginia Com¬ 
pany tried to manage their colony from London, where the 


THE GOVERNMENT OF THE UNITED STATES. 277 


members of the Company, who were active liberals and therefore 
not very active courtiers, presently got into trouble with the 
government and had both their charter and their colony taken 
away from them. The Massachusetts Company, on the other 
hand, itself came to America, and, almost unobserved by the 
powers in London, erected something very like a separate state 
on the new continent. Its charter was received in 1629; in 1630 
it emigrated, governor, directors, charter, and all, to America, 
bringing a numerous body of settlers, founded Salem, Boston, 
and Cambridge, and put quietly into operation the complete 
machinery of government which it had brought with it. It 
created not a little stir in official circles in England when it was 
discovered that the Company which had been given rights of 
settlement on the New England coast had left the country and 
was building a flourishing set of independent towns on its terri¬ 
tories; but small colonies at a great distance could not long 
retain the attention of busy politicians in London, and nothing 
was done then to destroy the bold arrangement. Fatal collision 
with the home government could not, however, it turned out, be 
permanently, or even long avoided by the aggressive, self-willed 
rulers of the Massachusetts Company. Many of the laws which 
they passed did not please the Crown, — particularly those which 
set up an exclusive religion and tolerated no other; they would 
not change their laws at the Crown’s bidding; and, though the 
evil day was postponed, it came at last. In 1684 the contest 
between Crown and colony came to a head, and the charter of 
the Massachusetts Company was annulled. Before a change 
could be effected in the government, indeed, the king, Charles II., 
died, and at the end of the troublous reign of James II. the 
colonists quietly resumed their charter privileges; but in 1692 
the government of William and Mary was ready to deal with 
them, and a new form of colonial organization was forced upon 
them. They were compelled to take a governor from the king; 
the royal governor appointed the judicial officers of the colony 
and controlled its military forces; and, although the colonists 
retained their assembly and through that assembly chose the 
governor’s council, the old charter privileges were permanently 
lost. 


278 THE GOVERNMENT OF THE UNITED STATES. 

The Connecticut Charter. — Bhode Island and Connecti¬ 
cut were smaller and more fortunate. The town of Saybrook, 
at the mouth of the Connecticut river, had been founded under 
a charter granted to two English noblemen, and consisted, there¬ 
fore, of immigrants direct from England; but Saybrook did not 
grow rapidly and proved a comparative failure. The successful 
and dominant settlement on the Connecticut was that which was 
founded higher up the river at Hartford, by men from Massa¬ 
chusetts who had neither charter nor any other legal rights, but 
who had simply come, settled, and made a written constitution 
for themselves. New Haven, westward of the river on the 
shore of the sound, had been established by a band of English 
immigrants equally without charter rights, but equally ready 
and able to construct a frame of government for themselves. 
Some thirty years after their settlement, the leaders of the 
* Connecticut colony/ up the river, which meantime had become 
an extended cluster of towns, decided that it was time to obtain 
a charter. Accordingly they sent their governor, Winthrop, to 
England to procure one. He was entirely successful, much more 
successful than was pleasant to the settlers of the New Haven 
district; for he had obtained a grant which included their lands 
and colony and which thus forced them to become a part of 
i Connecticut/ Saybrook had already been absorbed. The 
charter gave the colonists substantially the same rights of self- 
government that they had had under their own written constitu¬ 
tion, adopted upon their first settlement; it was, in other words, 
just such a charter as Massachusetts then enjoyed. And, unlike 
Massachusetts, Connecticut kept her charter, kept it not only 
through colonial times to the Be volution, but made it at the 
Bevolution her state constitution, and was content to live under 
it until 1818. Her shrewdness, her acts of timely concession, 
and her inoffensive size enabled her to turn away from herself 
each successive danger of forfeiture. 

Bhode Island’s Charter. — Bhode Island was similarly 
protected by fortune and sagacious management. Boger Wil¬ 
liams, the energetic leader of settlement in that region, obtained 
a charter from Parliament in 1644, which was confirmed in 1654, 
and replaced by a new charter, from Charles II., in 1663, the year 


THE GOVERNMENT OF THE UNITED STATES. 279 

after Connecticut obtained its legal privileges through the instrrn 
mentality of Winthrop. As New Haven and Connecticut were 
joined by Winthrop’s charter, so were the towns of the Rhode 
Island country united by the charters obtained by Williams, 
under the style ‘ Rhode Island and Providence Plantations/ — a 
title which is still the full official name of the state. The charter 
of 1663 was retained by the people of Rhode Island even longer 
than the people of Connecticut retained theirs. It was not radi¬ 
cally changed until 1842. 

Proprietary Governments. — The governments of almost 
all the other colonies were at first ‘proprietary’; those of Mary¬ 
land, Pennsylvania, and Delaware remained proprietary until the 
Revolution. Maryland was granted to the 'Calverts, Lords Balti¬ 
more; Pennsylvania and Delaware were both included in the 
grant to William Penn; New York was bestowed upon James, 
Duke of York, upon whose ascension of the throne, as James II., 
it became an immediate province of the Crown; New Jersey, 
originally a part of New York, was first bestowed by the Duke 
of York on Lord John Berkeley and Sir John Carteret, was after¬ 
wards divided, then sold in part, and finally surrendered to the 
Crown (1702); the Carolinas and Georgia in the same way, given 
at first to proprietors, passed very soon into the hands of the 
royal government. New Hampshire, after several attempts to 
unite with Massachusetts, fell quietly into the status of a royal 
colony, without having had either a charter or even any regularly 
ordered proprietary stage of existence. 

Government under proprietors meant simply government 
by governors and councils appointed by the proprietors, with in 
all cases a right on the part of the people to exercise a substantial 
control over the government through representative assemblies. 
The private proprietors, like the great public proprietor, the 
Crown, granted charters to their colonies. The charter which 
Penn bestowed upon Pennsylvania is distinguished as one of the 
best-conceived and most liberal charters of the time; and under 
it his colony certainly enjoyed as good government as most of the 
colonies could secure. 

Direct Government by the Crown, which came in turn to 
every colony except Rhode Island, Connecticut, Pennsylvania, and 


280 THE GOVERNMENT OF THE UNITED STATES. 


Delaware, involved the appointment of governors by the Crown, 
and also, everywhere except in Massachusetts, the appointment 
of the governor’s council. It generally involved also the depend¬ 
ence of the colonial judiciary, and in general of the whole admin¬ 
istrative machinery of government, upon the royal will; but it, 
nevertheless, did not exclude the colonists from substantial powers 
of self-government. Everywhere legislators disciplined governors 
with the effective whip of the money power, and everywhere the 
people grew accustomed to esteem the management of their own 
affairs, especially the control of their own taxes, matter-of-course 
privilege, just as much the inalienable right of Englishmen in 
America as of Englishmen in England. 

Development of the Assemblies. — It was, indeed, as a 
matter of course rather than as a matter of definite legal right 
that the powers of the colonial assemblies waxed greater and 
greater from year to year. Parliament would have been wise to 
continue the policy of neglect which had been the opportunity 
of the colonies in the development of their constitutional liberties. 
Left to themselves, they quickly showed what race they were of. 

As Burke said, in their justification, they “had formed within them' 
selves, either by royal instruction or royal charter, assemblies so exceed¬ 
ingly resembling a parliament, in all their forms, functions, and powers, 
that it was impossible they should not imbibe some opinion of a simi¬ 
lar authority. At the first designation of these assemblies, they were 
probably not intended for anything more (nor perhaps did they think 
themselves much higher) than the municipal corporations within this 
island, to which some at present love to compare them. But nothing in 
progression can rest on its original plan. . . . Therefore, as the colonies 
prospered and increased to a numerous and mighty people, spreading over 
a very great tract of the globe, it was natural that they should attribute 
to assemblies so respectable in their formal constitution some part of the 
dignity of the great nations which they represented. No longer tied 
to by-laws, these assemblies made acts of all sorts and in all cases 
whatsoever. They levied money, not for parochial purposes, but upon 
regular grants to the Crown, following all the rules and principles of a 
parliament, to which they approached every day more and more nearly. 
. . . Things could not be otherwise ; and English colonies must be had 
on these terms, or not had at all. In the meantime neither party felt 
any inconvenience from this double legislature [the parliament of Eng¬ 
land, that is, and a colonial legislature], to which they had been formed 
by imperceptible habits, and old custom, the great support of all the gov- 


THE GOVERNMENT OF THE UNITED STATES. 


281 


ernments in the world. Though these two legislatures were sometimes 
found perhaps performing the very same functions, they did not very 
grossly or systematically clash. ... A regular revenue, by the authority 
of Parliament, for the support of civil and military establishments, seems 
not to have been thought of until the colonies were too proud to submit, 
too strong to be forced, too enlightened not to see all the consequences 
which must arise from such a system.” 1 

In such, assertions of a right of parliamentary self-gov¬ 
ernment it might be expected that the charter colonies would be 
most forward; but, as a matter of fact, such was not the case. 
Massachusetts was ever, indeed, very stubbornly and heroically 
attached to her liberties, but the royal colony of Virginia was not 
a whit behind her. The assemblies of the royal colonies, no less 
than those of the charter governments, early, and as if by an 
instinct and habit common to the race, developed a consciousness 
and practice of local sovereignty, which comported well enough, 
indeed, with a perfect loyalty, — long-suffering in respect of Navi¬ 
gation Acts and all like attempts of the mother country to regu¬ 
late their place in the politics and commerce of the outside world, 
— but which was from the first prompt to resent and resist all 
dictation as to the strictly interior affairs of the settlements. 
And the same was true of the proprietary colonies, also. Mary¬ 
land assumed the same privileges that Virginia insisted upon, and 
even Pennsylvania, with its population compounded of English, 
Dutch, and Swedes, manifested not a little of the same spirit of 
independent self-direction. 

Development of Constitutional Liberty in the Colonies. — 

There was, therefore, a comparatively uniform development of 
constitutional liberty throughout the colonies. Eveiywhere the 
same general causes were operative. The settlement and develop¬ 
ment of a new country gave to the elective governing bodies of 
the colonies a wide and various duty of legislative regulation; 
the newness of the country created everywhere substantially the 
same new conditions of social relationship; everywhere, and 
more and more as the years went on, there was a very general 
participation in communal and colonial affairs by the mass of 

1 “Letter to the Sheriffs of Bristol,” Works (ed. Boston, 1880), Vol. II., 
pp. 232, 233. 


282 THE GOVERNMENT OF THE UNITED STATES. 


the people most interested: and democratic institutions brought 
in their train equality of law and a widespread consciousness of 
community of interest. Each colony grew, the while, more and 
more vividly conscious of its separate political personality in its 
relations with the other colonies and with the ruling powers in 
England. 

Political Sympathy of the Colonies. — The substantial 
identity of institutional development in the several colonies 
appears in nothing more clearly or conclusively than in their 
close and spontaneous alliance against England at the Re volution. 
Despite very considerable outward differences of social condition 
and many apparent divergencies of interest as between colony 
and colony, they one and all wanted the same revolution. Almost 
without hesitation they ran together to cooperate by the same 
means for the same ends. They did not so much make a common 
cause as have a common cause from the first. The real concrete 
case of revolution, it happened, was made up between England 
and Massachusetts. To the politicians in the mother country it 
seemed possible to divide the colonies on grounds of self-interest. 
Apparently colonies so utterly different in every outward aspect, 
so strongly contrasted in actual economic condition as Massachu¬ 
setts and Virginia, could easily be played off against one another. 
But we now know how little foundation of fact such a view had. 
Boston’s trade was offered to Salem, her commercial rival, as a 
bait to catch Salem’s acquiescence in the stringent Boston Port 
Bill which shut Boston off from all trade; but Salem would not 
have it. What was to prevent similar treatment of herself in the 
future ? More striking still, distant Virginia sounded the call 
to revolution in behalf of Massachusetts. The contest was 
political, she clearly perceived, not economical, — a contest of 
principle, not a contest for any temporary interest or momentary 
advantage. From the point of view of politics Massachusetts’ 
quarrel was Virginia’s also. Virginia spoke at once, therefore, 
and as a leader, for combination, for a joint resistance to the 
aggressions of the home government, and at length for inde¬ 
pendence and a perpetual union between the colonies. Eor the 
shortest possible time did the struggle remain local; almost 
immediately it became ‘ continental.’ 


THE GOVERNMENT OF THE UNITED STATES. 283 


American as compared with English Constitutional Devel¬ 
opment. — There was in this development of self-government in 
America a certain very close resemblance to the development of 
self-government in England; but there were also other points 
of very strong and obvious contrast between the institutional 
histories of the two countries. Both in England and in America 
the process of institutional growth was in the same direction. 
It began with small, hardy, deep-rooted local institutions, with 
small self-directing communities, and widened from these to 
national institutions which bound the constituent communities 
together in a strong and lasting central union. England began 
with her village communities and her judicial 1 hundreds,’ with 
the primitive communal institutions of the Teutonic folk; these 
were first gathered to a head in the petty kingdoms of the days 
of the Saxon Heptarchy; another step, and these one-time petty 
kingdoms were merely the counties of a wider union, and 
England was ready for the amalgamation of the Norman rule, 
— for the growth of her parliaments and her nationality. In 
like manner, the United States began with isolated settlements 
upon a long coast, settlements separate, self-contained, self- 
regulative; these in time merged in numerous petty colonial 
states; and finally these colonial states fitted themselves to¬ 
gether into a national union. 

Process of Growth in America Federation, in England 
Consolidation. — But the means of integration were in the two 
cases quite diverse. American integration has been federal; 
English, absorptive, incorporative. The earlier stages of federa¬ 
tion did not appear in the Southern colonies; because there the 
unity of the first settlement was generally not broken; the 
Virginia of the Revolution was but an expansion of the James¬ 
town settlement; growth by agricultural development was not 
disintegration like growth by town establishment. But in New 
England the process was federative from the first, finding its most 
perfect type, probably, in Rhode Island, whose town atoms drew 
so slowly and reluctantly together and so long stoutly resisted 
the idea that they had in any sense been absorbed or subordinated 
under the operation of the charters of ‘ Rhode Island and Provi¬ 
dence Plantations.’ What was at first mere confederation 


284 THE GOVERNMENT OF THE UNITED STATES. 


between these smallest units, however, by degrees became virtual 
coalescence, and the absorbed towns finally formed but subordi¬ 
nate parts in the new and larger colonial units which drew 
together in the Continental Congresses. Between these larger 
units, these full-grown colonial states, union was from the first 
distinctly federative, matter of concession and contract. They 
were united in entirely voluntary association, as the Saxon 
kingdoms were not. 

Conscious Development of Institutions in America. — 

Throughout their development the colonies presented a marked 
contrast to English development in this, that the formulation 
of their institutions was conscious and deliberate. The royal 
colonies, like the proprietary and the charter colonies, exercised 
their rights of self-government under written grants of privilege 
from the Crown: their institutions grew within the area of 
written constituent law; from the first they had definite written 
‘ constitutions 9 wherein the general fabric of their governments 
was outlined. Constitution by written law, therefore, became 
very early one of the matter-of-course habits of colonial thought 
and action. When they cast off their allegiance to Great Britain 
their self-constitution as independent political bodies took the 
shape of a recasting of their colonial constitutions simply. Rhode 
Island and Connecticut, as we have seen, did not even find it 
necessary to change their charters in any important particular: 
they already chose their own governors and officials as well as 
made their own laws. The other colonies, with little more 
trouble, found adequate means of self-government in changes 
which involved hardly more than substituting the authority of 
the people for the authority of the English Crown. But the 
charter, the written constituent law, was retained: the new gov¬ 
ernments had their charters which emanated from the people, as 
the old governments had had theirs given by the king. Popular 
conventions took the place of the Privy Council. The colonists 
were not inventing written constitutions ; they were simply con¬ 
tinuing their former habitual constitutional life. 

English Law and Precedent. — Whatever the form of 
colonial institutions, however, their substance and content were 
thoroughly English. In a sense, indeed, even the forms of colcn 


THE GOVERNMENT OF THE UNITED STATES. 


285 


nial constituent law may be said to have been English, since it 
was English practice which originated the idea and habit of giv* 
ing written grants of privilege to distant colonies. The colonial 
law of Canada and Australia stands to-day in much the same 
relation to the law of the mother country that the law of the 
American colonies bore to the law which created them (page 255). 
Within the constitutions of the colonial and revolutionary time, 
at any rate, English law and precedent were closely followed. 
The English common law has gone with Englishmen to the ends 
of the world. The English communities in America were but pro¬ 
jected parts of the greater English community at home; the laws of 
private and personal relationship which obtained in England were 
recognized and administered also in the colonies; and when, at 
the time of the Revolution, the colonists developed out of their 
charters the constitutions under which they were to live as inde¬ 
pendent commonwealths their first care was to adopt this common 
law under which they had always acted. Important modifications 
were made, it is true, in the law thus adopted. It was purged 
of all class privilege, of all church prerogative, of all things in¬ 
compatible with the simple democratic society of the new world; 
but no real break was made with the principles of English legal 
precedent and practice. 

Quite as naturally and quite as completely was English 
practice adhered to in the public law of the colonies and of the 
independent commonwealths into which they grew. The re¬ 
lations of the colonial legislatures with the colonial governors 
were substantially the relations of King and Parliament repro¬ 
duced on a small scale, but with scarcely less earnestness and 
spirit. In all respects, except that of the erection of a responsible 
ministry representing and shielding the executive, the relations 
of the people to their governments suggest English precedent. 
The powers of the executive were, in small, the powers of the 
Crown. The courts were constituted as the English courts were, 
and followed the same rules of procedure. The English in 
America, being men of the same practical political race as Eng¬ 
lishmen in England, struck out not a few lines of development of 
their own in suiting their institutions to the daily needs of a new 
civilization and to novel conditions of social organization; Amen- 


286 THE GOVERNMENT OF THE UNITED STATES. 

can politics were not long in acquiring in many respects a charac* 
ter peculiarly their own. But the manner of development was 
English throughout: there was nowhere any turning of sharp 
corners: there was nowhere any break of continuity. To the 
present day our institutions rest upon foundations as old as the 
Teutonic peoples. 

Union: Preliminary Steps. — How much of political 
precedent that was their own the colonists had developed ap¬ 
peared most distinctly when they came to put the timbers of 
their Union together in the days succeeding the Revolution. The 
colonies cannot be said to have framed any federative constituent 
law until 1777, when the Articles of Confederation were drawn 
up. Before that time they had cooperated without any determi¬ 
nate law of cooperation, acting rather upon the suggestions of 
international procedure than upon any clear recognition of corpo¬ 
rate combination. Preparations for union there had been, and 
signs of its coming; but no more. For a period of forty years 
following the year 1643 the Hew England colonies had held 
together in a loose confederation against the Indians; in 1754 
colonial delegates who had met at Albany for conference with 
representatives of the Six Nations discussed a premature plan of 
union; in 1765 delegates from nine of the colonies met at New 
York and uttered in behalf of all English Americans that protest 
against taxation by Parliament which gave the key-note to the 
revolutionary movement that followed; and in 1774 sat the first 
of the series of ‘ Continental Congresses ’ with which began 
American union. But in none of these steps was there any 
creation of organic union: that was to be the result of slow 
processes, and was to be effected only by the formulation of an 
entirely new body of law. 

Separateness of the Colonial Governments. — It is very 
important, if a just view is to he formed of the processes by which the 
Union was constructed, to realize the complete separateness of the gov¬ 
ernments of the colonies. They all held substantially the same general 
relation to the English authorities; they had a common duty as towards 
the distant country from which they had all come out; but they were not 
connected with each other by any bonds of government on this side the 
sea. Each of the colonies had its separate executive officials, legislature, 


THE GOVERNMENT OF THE UNITED STATES. 


287 


and courts, which had no connection whatever with the officers, legisla¬ 
tures, and courts of any other colony. Their cooperation from time to 
time in meeting dangers which threatened them all alike was natural and 
spontaneous, but it was intermittent; it rested upon mere temporary 
necessity and had no basis of interior organic law. The colonists had 
many grounds of sympathy. Besides possessing the same blood and the 
same language, they entertained the same ideas about political justice; 
their dangers, whether proceeding from aggressions on the part of the 
French and Indians which threatened their lives, or from aggressions 
by Parliament which threatened their liberties, were common dangers : 
they were one and all equally interested in the successful development 
and liberal government of the new country with which they had identified 
themselves. But the motive of their endeavors was always the preserva¬ 
tion of their internal and separate self-government; their liberties were 
historically coincident with their separate organization and rights as dis¬ 
tinct governments. It was only by a slow and hard experience of the 
fatal consequences of any other course that the colonies were brought to 
subordinate themselves to a central authority which could go further than - 
mere conference and command them. They saw from the first the neces¬ 
sity for cooperation, but they did not see from the first the absolute 
necessity for union. Very slowly, considering the swift influences of 
revolution amidst which they worked, and very reluctantly, considering 
the evident dangers of separation which daily looked them in the face, 
did they construct the union which was to deprive them of the fulness 
of their loved independence. 

The Confederation. —It was not until 1781 that a founda* 
tion of distinct written law was put beneath the practice of union; 
it was not till 1789 that the law of the union was made organic. 
In 1781 the Articles of Confederation were finally adopted which 
had been proposed by the Continental Congress of 1777. But 
those Articles gave no real integration to the confederated states: 
they were from the first a rope of sand which could bind no one. 
They did little more than legitimate the Continental Congress. 
Under them the powers of the Confederation were to be exercised 
by its Congress; its only executive or judicial organs were to be 
mere committees or agencies of the Congress; and it was in fact 
to have no real use for executive parts, for it was to have no 
executive rights. Its function was to be advice, not command. 
It hung upon the will of the states, being permitted no effective 
will of its own. The Articles were in effect scarcely more than 
an international convention. 


288 THE GOVEKNMENT OF THE UNITED STATES. 


The Articles of Confederation formally vested the exercise 
of federal functions in a Congress just such as the Continental Con¬ 
gresses had been, — a Congress, that is, consisting of delegates from the 
several states, and in whose decisions the states were to have an abso¬ 
lutely equal voice. No state, it was arranged, should have her vote in 
the Congress unless represented by at least two delegates, and no state, 
on the other hand, was to be entitled to send more than seven delegates; 
whether she sent two or seven, however, her vote was to be a single vote, 
upon which her delegates were to agree. The government thus consti¬ 
tuted was officially known as “ The United States in Congress assembled.” 
For the exercise of representative functions it was very liberally and com¬ 
pletely equipped. To it the independence of the several states in dealing 
with foreign powers was entirely subordinated. It alone was to conduct 
international correspondence and sanction international agreements; it 
was to control the army and navy of the Confederation; it was to preside 
over federal finances, doing all the borrowing and all the spending that 
might be necessary for the purposes of the common government; it was 
to determine the value of current coin and the standards of weights and 
measures ; it was to be arbitrator in disputes between the states ; in brief, 
it was to be the single and dominant authority for all the graver common 
interests of the constituent states: its representative position was emi¬ 
nent and complete. 

Weakness of the Confederation. — But it was given abso¬ 
lutely no executive power, and was therefore helpless and contemptible. 
It could take no important resolution without the difficult concurrence 
of nine states, — a concurrence made all the more difficult by the fact that 
the removal of the pressure of the war with England very greatly abated 
the interest of the states in the functions of the central Congress, and led 
some of them to fail again and again to send any delegates to its sessions. 
Its chief executive agency was a committee of its members represent¬ 
ing all the states (hence called the “Committee of States”) and bound 
by the same hard rule of obtaining the concurrence of nine of its thir¬ 
teen members to every important executive step. Above all, its only 
power to govern was a power to advise. It could ask the states for 
money, but it could not compel them to give it; it could ask them for 
troops, but could not force them to heed the requisition ; it could make 
treaties, but must trust the states to fulfil them ; it could contract debts, 
but must rely upon the states to pay them. It was a body richly enough 
endowed with prerogatives, but not at all endowed with powers. “The 
United States in Congress assembled” formed a mere consultative and 
advisory board. 

Need of a Better Union. — It was the fatal executive 
impotency of the Confederation which led to the formation of the 


THE GOVERNMENT OF THE UNITED STATES. 


289 


present stronger and more complete government. The old Con¬ 
tinental Congresses had sufficed, after a fashion, to keep the 
colonies together so long as the pressure of the war continued. 
Throughout that war there had been, despite much indifference 
now and again on the part of some of the colonies to their duty, 
and of not a little positive dereliction of plain obligations, a 
remarkable degree of energy and unity of action among the con¬ 
federated colonists. But when the pressure of the war was 
removed there was an ominous access of indifference, an ill- 
boding decrease of respect for plighted faith between the states. 
Signs fast multiplied both of the individual weakness of the 
states and of the growth of threatening jealousies between them. 
A war of tariffs began between neighbor states on the seaboard, 
notably between New York and New Jersey and between Vir¬ 
ginia and Maryland. In Massachusetts there flared out, by 
reason of the poverty engendered by the war, a rebellion of 
debtors under Daniel Shays which it was for a moment feared 
the state authorities might find it impossible to cope with. It 
speedily became evident that, both for the sake of internal order 
and of interstate peace and goodwill, a real central government 
was needed. Central consultation would not suffice; there must 
be central government. The Confederation, therefore, was no 
real advance upon the old Continental Congresses. Before a 
single decade had passed over the new government with its fair- 
spoken Articles a new union had been erected and the real his¬ 
tory of the United States begun. 

The Constitution : Colonial Precedents. — The present 
Constitution erects a very different government. It is the charter 
of a federal state, which has a commanding law and an indepen¬ 
dent power of its own, whose Constitution and law are the supreme 
law of the land. The Convention which framed the new Constitu¬ 
tion met in Philadelphia in May, 1787, and fused together over 
the slow fires of prolonged debate the elements of English and 
colonial precedent which were to constitute the government of 
the United States. In the debates of that Convention during 
that memorable summer are to be read the particulars of the 
translation of English precedent into American practice made 
during the formative colonial period. Through the instrument 


290 THE GOVERNMENT OF THE UNITED STATES. 

tality of the able men who composed that extraordinary as¬ 
sembly, the government of the United States was fitted out 
with the full experience of the colonies and of the revolu¬ 
tionary states . 1 It was arranged that the legislature of the new 
federal government should consist of two houses, not in direct 
imitation of the English system, whose House of Lords we 
did not have the materials for reproducing, but in conformity 
with an almost universal example set by the states. A single 
state furnished the precedent in accordance with which a real 
difference of character was given to the two houses. The lower 
house of the Connecticut legislature was constituted by an equal 
representation of the towns of the state, while her upper house, 
composed of the governor, lieutenant-governor, and twelve ‘ as¬ 
sistants/ represented her people at large: and Connecticut’s 
example showed the Convention a convenient way of compro¬ 
mise by which they could reconcile the two parties within it 
which were contending, the one for an equal representation of 
the states in Congress after the absolute manner of the Confed¬ 
eration, the other for a proportional representation of the people. 
The Senate, it was agreed, should represent the states equally, 
the House of Representatives the people proportionally. The 
names Senate and House of Representatives were to be found 
already in use by several of the states. The single Executive, 
the President, was an obvious copy of the state governors, many 
of whom at that time bore the name of president; his veto power 
was to be found formulated ready to hand in the constitution of 
Hew York; a method of impeachment was already prepared in 
the constitutions of half a dozen states. Several states had also 
the office of Vice-President. With a fine insight into the real 
character of the government which they were constructing, the 
Convention provided that its judiciary should be placed, not 
under the President or the houses, but alongside of them, upon 

1 In describing the work of the Convention I follow here Professor Alex¬ 
ander Johnston’s admirable exposition given in the New Princeton Review 
for September, 1887, under the title “The First Century of the Constitu¬ 
tion.” A convenient brief survey of the chief features of the state consti¬ 
tutions at the time of the formation of the present government of the Union 
may be found in Hildreth, Vol. III., Chap. XLIV. 


THE GOVERNMENT OF THE UNITED STATES. 29l 


a footing of perfect equality with them. A similar arrangement 
obtained under the state constitutions. The function of constitu¬ 
tional interpretation was nowhere explicitly conferred, but existed 
in the nature of the case. It, necessarily as old as written char¬ 
ters and constitutions, was an inevitable corollary to their funda¬ 
mental proposition of a gift of limited powers. Written constitu¬ 
ent law is by its very nature a law higher than any statute the 
legislature acting under it can enact, and by that law, as by an 
invariable standard, must the courts test all acts of legislation. 1 
The colonial courts had once and again upon this principle 
questioned the validity of colonial legislation, and the Supreme 
Court of the United States had long had a prototype in the 
Judicial Committee of the Privy Council, whose function it 
was to hear appeals from the colonies, and whose practice it 
had been to pronounce against all laws incompatible with the 
royal charters (pages 219, 255). 2 

When they came to equip Congress with powers, the Con¬ 
vention adopted the plan of careful enumeration. They set out $ie 
acts of government which were to be permitted to the legislature 
of the new government in a distinctly cast list of eighteen items. 
Even in doing this, however, they may be said to have been simply 
recording the experience of the Confederation. They were giving 
Congress the powers for lack of which the Congress of the Con¬ 
federation had proved helpless and ridiculous. It was only when 
they came to construct the machinery for the election of the Presi¬ 
dent that they left the field of American experience and English 
example and devised an arrangement which was so original that 
it was destined to break down almost as soon as it was put in 
operation. 

It is an instructive fact that the work of the Convention was a 
work of selection, not a work of creation, and that the success of 
their work was not a success of invention, always most dangerous 
in government, but a success of judgment, of selective wisdom, 
of practical sagacity, — the only sort of success in politics which 
can ever be made permanent. 

1 See A. V. Dicey, The Law of the Constitution, Chap. Ill; and J. Bryce, 
The American Commonwealth , Chap. XXIII. 

2 See Brinton Coxe, Judicial Power and Unconstitutional Legislation . 


292 THE GOVERNMENT OF THE UNITED STATES. 

Character of the New Government. — It is one of the dis¬ 
tinguishing characteristics of the English race whose political 
habit has been transmitted to us through the sagacious generation 
by whom this government was erected that they have never felt 
themselves bound by the logic of laws, but only by a practical 
understanding of them based upon slow precedent. For this race 
the law under which they live is at any particular time what it is 
then understood to be; and this understanding of it is compounded 
of the circumstances of the time. Absolute theories of legal 
consequence they have never cared to follow out to their con¬ 
clusions. Their laws have always been used as parts of the 
practical running machinery of their politics, — parts to be fitted 
from time to time, by interpretation, to existing opinion and social 
condition. 

Character of the Government Changes with Opinion. — 

It requires a steady, clear-viewed, thoroughly informed historical 
sense, therefore, to determine what was at any given time the 
real character of our political institutions. To us of the present 
day it seems that the Constitution framed in 1787 gave birth in 
1789 to a national government such as that which now constitutes 
an indestructible bond of union for the states ; but the men of that 
time would certainly have laughed at any such idea, — and for the 
English race, as I have said, every law is what those who admin¬ 
ister it think that it is. The men of 1789 meant to form “a more 
perfect union ” than that which had existed under the Confedera¬ 
tion : they saw that for the colonies there must be union or disin¬ 
tegration ; they thought union needful and they meant to have it 
in any necessary degree. But they had no special love for the 
union which they set about consummating, and they meant to 
have as little of it as possible, — as little as might be compatible 
with wise providence in respect of the welfare of the new-fledged 
states. They were even more afraid of having too strong a cen¬ 
tral government than of having one which was too weak, and they 
accepted the new constitution offered them by the Convention of 
1787 because convinced of the truth of the arguments urged by its 
friends to the effect that the union would be federal merely and 
would involve no real sacrifice of individuality or autonomy on 
the part of the states. 


THE GOVERNMENT OF THE UNITED STATES. 293 


Early Sentiment towards the Union. — It is astonishing 
to us of this generation to learn how much both of hostility and 
of indifference was felt for the new government, which we see to 
have been the salvation of the country. Even those who helped 
to make it and who worked most sincerely for its adoption enter¬ 
tained grave doubts as to its durability; some of them even, in 
despondent moments, questioned its usefulness. Philosophic 
statesmen like Alexander Hamilton supported it with ardent pur¬ 
pose and sustained hope; but for the average citizen, who was not 
in the least degree philosophic, it was at first an object of quite 
unexciting contemplation. It was for his state, each man felt, 
that his blood and treasure had been poured out: it was that 
Massachusetts and Virginia might be free that the war had been 
fought, not that the colonies might have a new central government 
set up over them. Patriotism was state patriotism. The states 
were living, organic persons: the union was an arrangement, — 
possibly it would prove to be only a temporary arrangement; 
entirely new adjustments might have to be made. 

Early Tolerance of Threats of Secession. — It is by this 
frame of mind on the part of the first generation that knew the 
present Constitution that we must explain the undoubted early 
tolerance for threats of secession. The Union was too young to 
be sacred; the self-love of the states was too pronounced to be 
averse from the idea that complete state independence might at 
any time be resumed. Discontent in any quarter was the signal 
for significant hints at possible withdrawal. As the new system 
lived on from year to year and from year to year approved itself 
strong and effective it became respected; as it gathered dignity 
and force regard was added to respect, until at last the federal 
government became a rallying centre for great parties moved by 
genuine national sentiment. But at first neither love nor respect 
shielded the federal authorities from the jealousies and menaces 
of the states. The new government was to grow national with 
the growth of a national history and a national sentiment. 

Growth of the National Idea. — The career and fate of 
the Federalist party very well illustrate the first state of opinion 
concerning the Union. The Federalist party was the party of 


294 THE GOVERNMENT OF THE UNITED STATES. 

the Constitution, — the party which had been chiefly instru¬ 
mental in bringing about the adoption of the new frame of gov¬ 
ernment. Immediately upon the inauguration of the present 
Union this party of its friends was put in charge of the new 
central body politic. It presided over the critical period of its 
organization, and framed the first measures which gave it finan¬ 
cial credit, international consideration, security, and energy. 
But it soon became evident that the Federalists held views as to 
the nature of the new government which not all of those who had 
voted for the adoption of the Constitution were willing to sanc¬ 
tion. They assumed for the federal authorities prerogatives of 
too great absoluteness, and seemed to many to be acting upon the 
idea that the purpose of the Constitution was to subordinate, and 
if need be sacrifice, state interests to the interests of the general 
government. Very speedily, therefore, they brought a reaction 
upon themselves, and were displaced by a party which felt that 
the limitations put by the Constitution upon federal authority 
ought to be very strictly observed. This new party, calling itself 
‘ Democratic-Republican,’ may be said to have been created by the 
injudicious excesses of the Federalists; and from this point of 
view the Federalist party may be said to have effected its own 
destruction. After its first national defeat it never again came 
into power. Rapidly in some places, slowly in others, it went 
utterly to pieces. 

But, although the Federalist party was destroyed, time 
worked in favor of its political conceptions. The Democratic- 
Republicans soon found that success in conducting the affairs of 
the federal government was, even for them, conditioned upon a 
very liberal reading of the authority conferred by the Constitu¬ 
tion ; and by slow degrees they drifted into practices of ‘ broad 
construction ’ quite as abhorrent to their own first principles as 
the much berated measures of the Federalists had been. But the 
Democratic-Republicans, — or the Democrats as they were before 
long more briefly called, — had the advantage of a corresponding 
change in public opinion. That, too, was steadily becoming 
nationalist in its tendencies. 

Railroads, Expansion, and War aid the N ational Idea.— 
So long as the people of one section of the country saw little or 


THE GOVERNMENT OF THE UNITED STATES. 295 


nothing of the people of the other sections, separateness of feel¬ 
ing and localness of view continued to exist and to exercise a 
controlling force; the majority of the people continued to put 
the states before the nation in their thoughts and to demand 
more or less punctilious regard for state prerogatives. But when 
railroads began to be built and to multiply; when people from 
all parts of the Union began to go out and settle the West 
together; when seeing each other and trading with each other 
began to make the people of all the states very much alike in 
most of the greater things of habit and institution, and even in 
most of the smaller things of opinion and conduct; when new 
states which had grown up in the West without any of the old 
conservative colonial traditions began to be admitted to the Union 
in increasing numbers, regarding themselves as born in and of 
the Union; when a second war with England and a hot struggle 
with Mexico had tested the government and strengthened a sen¬ 
timent of national patriotism, — then at length it began to be 
very generally thought that the Federalists had been right after 
all; that the federal government ought to come first in considera* 
tion, even at the cost of some state pride. 

Slavery stands in the Way of Nationality. —What stood 
most in the way of the universal growth of this sort of national 
feeling was the great difference between the northern and southern 
portions of the Union caused by the existence of slavery in the 
South. So long as the laborers in the South were slaves and those 
of the North free men, these two sections could not become like 
one another either socially or politically, and could not have the 
same national feeling. The North and Northwest meant one 
thing when they spoke of the nation ; while the South meant quite 
another thing. Each meant a nation socially and politically like 
itself. The two sections, therefore, rapidly became dissatisfied 
with living together under the same political system, and the seces¬ 
sion so much talked about in various quarters in the earlier days 
of the Union at last became a reality. Inevitably came the war of 
secession, by means of whose fiery processes the differences of insti¬ 
tution between North and South were to be swept utterly away. 

Civil War completes the Union. — The war wrought 
changes of the most profound character. Secession was pre- 


296 THE GOVERNMENT OF THE UNITED STATES. 

vented, the Union was preserved, and slavery was forever 
abolished; these were the immediate effects of the struggle. 
But the remoter results were even more important. They pene¬ 
trated to the changing of the very nature of the Union, though 
the form of the federal government remained in all essential feat¬ 
ures unaltered. The great effect of the war was, that the nation 
was made, in social institutions, at last homogeneous. There 
was no longer any permanent reason why the South should not 
become like the rest of the country in character and sentiment. 
Both sections were brought to the same modes of life and thought; 
there was no longer any legal obstacle to their being in reality one 
great nation. The effort made in the war, moreover, to preserve 
the Union, and the result of the war in making the country at 
last socially homogeneous throughout, has made the federal gov¬ 
ernment, as the representative of the nation, seem greater in oui 
eyes than ever before, and has permanently modified in the pro- 
foundest manner the way in which all the old questions concern¬ 
ing constitutionality and state rights are regarded. 

Present Character of the Union. — It by no means fol¬ 
lows that because we have become in the fullest organic sense 
a nation, ours has become a unitary government, its federal feat¬ 
ures merged in a new national organization. The government 
of the Union has indeed become permanent, the cherished repre¬ 
sentative, the vital organ of our life as a nation; but the states 
have not been swallowed up. Their prerogatives are as essential 
to our system as ever, — are indeed becoming more and more 
essential to it from year to year as the already vastly complex 
organism of the nation expands. But, instead of regarding the 
government of the United States and the government of a state 
as two governments, as our fathers did, we now regard them, — 
if we may make a matter-of-fact analysis of our working views in 
politics, — as two parts of one and the same government, two 
complementary parts of a single system. The value of the plan 
of government which our statesmen adopted at the first, the plan 
of functions divided between national and state authorities, has 
depreciated not a whit: we are only a little less anxious about 
the clearness of the lines of division. The national government 


THE GOVERNMENT OF THE UNITED STATES. 297 


still has its charter, somewhat enlarged since the war, but sub¬ 
stantially the same document as of old; and the national authori¬ 
ties must still coniine themselves to measures within the sanction 
of that charter. The state governments, too, still have their 
charters, and still have valid claim to all powers not specifically 
delegated to the government of the Union. Liberal construction 
of the federal charter the nation wants, but not a false construc¬ 
tion of it. The nation properly comes before the states in honor 
and importance, not because it is more important than they are, 
but because it is all important to them and to the maintenance of 
every principle of government which we have established and 
still cherish. The national government is the organic frame of 
the states: it has enabled, and still enables, them to exist. 

Present Character of the Government of the Union.— 
It is perhaps most in accordance with the accomplished results 
of our national development to describe the government of the 
United States, not as a dual government, but as a double govern¬ 
ment, so complete is the present integration of its state and fed¬ 
eral parts. Government with us has ceased to be plural and has 
become singular, the government of the United States. Distinct 
as are its parts, they are not separate. The state and federal 
systems are so adjusted under our public law that they may not 
only operate smoothly and effectively each in the sphere which is 
exclusively its own, but also fit into each other with perfect har¬ 
mony of cooperation wherever their jurisdictions cross or are 
parallel, acting as parts of one and the same frame of govern¬ 
ment, with an uncontested subordination of functions and an 
undoubted common aim. 

Although these two parts of our government are thus 
vitally united, however, thus integrated into what is in reality 
a single scheme of government, state law by no means depends 
upon federal law for its sanction. The Constitution of the 
United States and the laws and treaties passed in pursuance 
thereof are indeed the supreme law of the land, but their su¬ 
premacy does not trench upon or displace the self-originated 
authority of the states in the immensely important sphere re¬ 
served to them. Although it is true, taking our system as a 


298 THE GOVERNMENT OF THE UNITED STATES. 

whole, that the governments of the states are subordinate in our 
political order to the government of the Union, they are not sub¬ 
ordinate in the sense of being subject to be commanded by it, but 
only in being less than national in their jurisdiction. 

The States not Administrative Divisions hut Constituent 
Members of the Union. —The common and convenient distinction 
between central and local government furnishes here no appropri¬ 
ate ground of discrimination. A central government, as contra¬ 
distinguished from a local government within the meaning of 
that distinction, is a government which prescribes both the con¬ 
stitution and the mode of action of the lesser organs of the sys¬ 
tem to which it belongs. This the governments of the states do 
with reference to the townships, the counties, the cities within 
their territories: these local bodies are merely administrative 
divisions of the states, agencies delegated to do the daily work 
of local government. But there is no such relationship between 
the federal government and the states. They are not adminis¬ 
trative divisions but constituent members of the Union, coordi¬ 
nate with the Union in their powers, in no sense subject to it 
in their appropriate spheres. They are excluded, indeed, by the 
federal Constitution from the exercise of certain functions, but 
the great and all-important functions which they do exercise 
are not given them by that Constitution : they are exercised, on 
the contrary, upon the completest principles of self-direction. 
We may properly distinguish the government of a county and 
the government of a state by the distinction between local and 
central government, but not the government of a state and the 
government of the Union. 


Character, Organs, and Functions of the States. 

The States properly come first in a description of the 
government of this country, not only because it was in conform¬ 
ity with state models and precedents that the federal government 
was constructed, but also and more particularly because the great 
bulk of the business of government still rests with the state 
authorities. The states still carry by far the greater part of 
the weight of the governing function, still constitute the ordinary 


THE GOVERNMENT OF THE UNITED STATES. 299 


fountains of justice and of legal right, still stand nearest the 
people in the regulation of all their social and legal relation¬ 
ships. Like the Swiss Cantons, our states have given to the 
government which binds them together their own forms of con¬ 
stitution. Even more than the Cantons, our states have re¬ 
tained their right to rule their citizens in all ordinary matters 
without federal interference. They are the chief creators of law 
among us. They are the chief constituent units of our political 
system not only, but are also self-directive units. They make up 
the mass, the body, the constituent tissue, the organic stuff of the 
government of the country. “ The federal government,” as Tocque- 
ville said, “ is the exception; the government of the states is the 
rule.” To them is intrusted our daily welfare, to the federal gov¬ 
ernment only certain collective interests. Upon the character of the 
state governments depends the character of the nation in its several 
constituent members; upon the character of the federal govern¬ 
ment depends the character of the nation as a whole. If we are 
to begin our study of our institutions at the centre, at the heart 
of self-government, we must begin with the states. 

The Law of the States: its Character. — The law of each 
state consists of two great parts, (1) the Constitution, statutes, and 
treaties of the United States and (2) the constitution and statutes 
of the state. The Constitution, statutes, and treaties of the United 
States are the supreme law of the land not so much in the sense 
of being set above the constitutions and laws of the states as in 
the sense of being, by virtue of the principles of our public law, 
integral parts of the law of the states. The constitutions of 
several of the states explicitly declare the Constitution of the 
United States to be a part of their fundamental law: but such 
declarations are only formal recognitions of a principle now in all 
cases indubitable. On their legal as well as on their political side 
the two parts of our system have been completely integrated. 
Upon the state courts as well as upon the courts of the United 
States rests the duty of administering federal law. The federal 
Constitution is a negative portion of state law in respect of the 
limitations which it sets to the sphere of state activity; but the 
laws passed by Congress under the authority of that Constitu¬ 
tion are also positive portions of state law, whose mandates all 


300 THE GOVERNMENT OF THE UNITED STATES. 


officers of government, whether state or federal, are bound to 
obey. 

The constituted authorities of the states do not stand in 
the same relation, however, to the Constitution and laws of the 
Union that they bear to state law. Of state law they are the 
final interpreters, but of federal law they are only provisional in¬ 
terpreters. In acting upon federal law state officers always act 
subject to the supervision of the federal tribunals. 

The functions of the state courts with regard to the inter¬ 
pretation of federal law very forcibly illustrate the adjustments of our 
system. If in any case brought in a state court the question arise whether 
a certain state law involved in the case is or is not in violation of the Con¬ 
stitution of the United States, the court may freely give its judgment upon 
the question, and if its judgment be that the state law is not constitutional 
that judgment is conclusive. If, however, it should declare the law to be 
in agreement with the federal Constitution, its opinion may be cited to a 
federal tribunal for revision. The federal law is, thus, not regarded as a 
thing apart from the law of a state, too sacred to be handled by any but 
the federal courts, its specially constituted guardians: it is a part of state 
law and the state courts may declare and apply its principles. But in the 
last resort the federal courts must themselves shield it from a too liberal 
or too prejudiced judgment by state judges, who may very conceivably 
be interested to vindicate the statutes of their state as against any objec¬ 
tions drawn from the law of the Union. Both for the sake of making it 
uniform and for the sake of keeping it supreme federal law must receive 
its final adjudication in its own courts. 

Scope of State Law. — A moment’s thought suffices to 
reveal how very great a field of activity, how preponderant a part 
remains under our system to the states. The powers of the fed¬ 
eral government seem great by enumeration. Besides being in¬ 
trinsically powers of the greatest importance, they are made the 
more imposing in the Constitution by the fact of their being set 
forth in an exhaustive list. The residuum of powers that remains 
to the states, consisting as it does of unenumerated items, is 
vague, and because vague seems unimportant by comparison. 
A moment’s examination of this residuum however, a moment’s 
consideration of its contents, puts a very different face on the 
matter. It is worth while for the sake of an adequate under¬ 
standing of the real division of powers under our government to 


THE GOVERNMENT OF THE UNITED STATES. 801 


give to the powers remaining with the states something like the 
same setting forth that is given to those granted to the Union. 

Legislative Powers of the Union. — The Constitution of 
the United States grants to Congress first of all the power to lay 
and collect taxes, duties, imposts, and excises for the support of 
the government of the Union, the payment of its debts, and the 
promotion of the common defence and welfare, and also the power 
to borrow money on the credit of the United States; but these 
powers of taxation and borrowing belong also to the states, except 
that they must raise their revenues without resort to duties, im¬ 
posts, and excises, the privilege of imposing these being reserved 
to the Union exclusively. The powers which distinguish the 
general government from the governments of the states are not 
these powers of raising money but these others: To control the 
monetary system of the country, to maintain post-offices and post¬ 
roads, to grant patents and copyrights, to deal with crimes com¬ 
mitted on the high seas or against the law of nations, to shape the 
foreign relations of the country, to declare war and control the 
military forces of the nation, and to regulate commerce both with 
foreign countries and among the states. It is empowered also to 
establish uniform rules of naturalization and uniform laws concern¬ 
ing bankruptcy; but these powers do not belong to it exclusively. 
In case Congress does not act in these matters, the states may 
adopt laws for themselves concerning them. All the powers of 
the general government are plainly such as affect interests which 
it would be impossible to regulate harmoniously by any scheme 
of separate state action, and only such; all other powers whatever 
remain with the states. 

Powers withheld from the States. — Some powers, it is 
true, the Constitution of the United States expressly withholds 
from the states, besides those granted exclusively to the general 
government. No state may pass any bill of attainder, ex post facto 
law, or law impairing the obligation of contracts, or grant any 
title of nobility; no state may, without the consent of Congress, 
lay any imposts or duties, keep troops or ships of war in time of 
peace, enter into any agreement with another state or with a 
foreign power, or engage in war unless actually invaded or in such 
immediate danger as will not admit of delay. But these prohibi 


802 THE GOVERNMENT OF THE UNITED STATES. 

tions obviously curtail scarcely at all the sphere which the states 
would in any case normally occupy within the scheme of federal 
union. 

Powers left with the States. — Compared with the vast 
prerogatives of the state legislatures, these limitations seem 
small enough. All the civil and religious rights of our citizens 
depend upon state legislation; the education of the people is 
in the care of the states; with them rests the regulation of the 
suffrage; they prescribe the rules of marriage, and the legal rela¬ 
tions of husband and wife, of parent and child ; they determine the 
powers of masters over servants and the whole law of principal 
and agent, which is so vital a matter in all business transactions; 
they regulate partnership, debt and credit, and insurance; they 
constitute all corporations, both private and municipal, except 
such as specially fulfil the financial or other specific functions of 
the federal government; they control the possession, distribution, 
and use of property, the exercise of trades, and all contract 
relations; and they formulate and administer all criminal law, 
except only that which concerns crimes committed against the 
United States, on the high seas, or against the law of nations. 
Space would fail in which to enumerate the particular items of 
this vast range of power; to detail its parts would be to catalogue 
all social and business relationships, to set forth all the founda¬ 
tions of law and order. 

A striking illustration of the preponderant part played by state 
law under our system is supplied in the surprising fact that only one out 
of the dozen greatest subjects of legislation which engaged the public 
mind in England during the nineteenth century would have come within the 
powers of the federal government under the Constitution as it stood before 
the war, only two under the Constitution as it stands since the addition of 
the war amendments. I suppose that I am justified in singling out as 
these twelve greatest subjects of legislation the following: Catholic eman¬ 
cipation, parliamentary reform, the abolition of slavery, the amendment 
of the poor-laws, the reform of municipal corporations, the repeal of the 
corn laws, the admission of the Jews to Parliament, the disestablishment 
of the Irish church, the alteration of the Irish land laws, the establishment 
of national education, the introduction of the ballot, and the reform of the 
criminal law. Of these every one except the corn laws and the abolition 
of slavery would have been under our system, so far as they could be 
dealt with at all, subjects for state regulation entirely : and it was only 


THE GOVERNMENT OF THE UNITED STATES. 303 


by constitutional amendment made in recognition of the accomplished 
facts of the war that slavery, which was formerly a question reserved 
for state action, and for state action alone, was brought within the field 
of the federal authority. 1 

Non-constitutional Provisions in State Constitutions.— 

One of the most characteristic circumstances connected with our 
state law is the threatened loss of all real distinction between 
constitutional and ordinary law. Constitutions are in their 
proper nature bodies of law by which government is constituted , 
by which, that is, government is given its organization and 
functions. Private law, the regulation of the relations of citi¬ 
zens to each other in their private capacities, does not fall 
within their legitimate province. This principle is fully recog¬ 
nized in the construction of our federal Constitution, which 
is strong and flexible chiefly because of its great, its admirable 
simplicity and its strictly constitutional scope. But constitution¬ 
making in the states, especially in the newer states, has pro¬ 
ceeded upon no such idea. Not only do the constitutions of 
the states go very much more into detail in their prescriptions 
touching the organization of the government; they go far beyond 
organic provisions and undertake the ordinary, but very different, 
work of legislative enactment. They commonly embody regula¬ 
tions, for example, with reference to the management of state 
property, such as canals and roads, and for the detailed adminis¬ 
tration of the state debt; they determine the amounts and sorts 
of property which are to be exempt from seizure for private 
debt; they formulate sumptuary laws, such as those forbidding 
the sale of intoxicating liquors; at a score of points they enter 
without hesitation or restraint the field usually reserved for the 
action of legislative bodies. 

Distrust of Legislation. — The motive is dissatisfaction 
with legislation, distrust of legislators, a wish to secure for cer¬ 
tain classes of law a greater permanency and stability than is 
vouchsafed to statutes, which stand in constant peril of altera- 

1 Compare J. F. Jameson, Introduction to the Constitutional and Political 
History of the Individual States , Johns Hopkins University Studies in His¬ 
torical and Political Science, 4th Series, p. 9 (continuous p. 189). 


804 THE GOVERNMENT OF THE UNITED STATES. 

tion or repeal. A further motive is the desire to give to such 
laws the sanction of a popular vote. It is the almost universal 
practice throughout the Union to submit constitutional provisions 
to a vote of the people; and the non-constitutional provisions 
which are becoming so common in our constitutions are virtually 
only ordinary laws submitted to popular sanction and so placed, 
along with the rest of the instrument of which they form incon¬ 
gruous parts, beyond the liability of being changed otherwise 
than through the acquiescence of the same ultimate authority. 
The practice perhaps discovers a tendency towards devising 
means for making all very important legal provisions dependent 
upon direct popular participation in the process of enactment. 

The objections to the practice are as obvious as they are 
weighty. General outlines of organization, such as the Consti¬ 
tution of the United States contains, may be made to stand with¬ 
out essential alteration for long periods together; but, in propor¬ 
tion as constitutions make provision for interests whose aspects 
must change from time to time with changing circumstance, they 
enter the domain of such law as must be subject to constant 
modification and adaptation. Not only must the distinctions 
between constitutional and ordinary law hitherto recognized and 
valued tend to be fatally obscured, but the much to be desired 
stability of constitutional provisions must in great part be sacri¬ 
ficed. Those constitutions which contain the largest amount of 
extraneous matter, which does not concern at all the structure or 
functions of government, but only private or particular interests, 
must of course, however carefully drawn, prove subject to most 
frequent change. In some of our states, accordingly, constitu¬ 
tions have been as often changed as important statutes. The 
danger is that constitution-making will become with us only a 
cumbrous mode of legislation. 

Distrust of the legislatures is further indicated by the intro¬ 
duction in several states of the initiative and the referendum for 
ordinary laws. By the former a certain percentage of the elec¬ 
torate may initiate legislation by a petition which, when properly 
signed and forwarded to the Secretary of State, compels the sub¬ 
mission to popular vote of the measure set out in the petition. 
By the referendum a certain percentage of the electorate, gener- 


THE GOVERNMENT OP THE UNITED STATES. 305 


ally smaller than in the case of the initiative, may compel the 
submission to popular vote of a measure already passed by the 
legislature. 

The objections to the initiative and the referendum are that 
they assume a discriminating judgment and a fullness of infor¬ 
mation on the part of the people touching questions of public pol¬ 
icy which they do not often possess, and that it lowers the sense 
of responsibility on the part of legislators. In their behalf it 
may be urged that they enable the people to pass good measures 
and to kill bad ones and that their educational value is large. 

Constitutional Amendments. — The amendment of state 
constitutions, like the amendment of the federal Constitution, can 
be effected only by elaborate, formal, and unusual processes which 
are meant to hedge the fundamental law about with a greater 
dignity and sanctity than attaches to any other body of legal 
precepts. The theory of our whole constitutional arrangement 
is, that the people have not only, in establishing their constitu¬ 
tions, bound their agents, the governing bodies and officials of 
the states, but have also bound themselves, — have bound them¬ 
selves to change the fundamental rules which they have made 
only by certain formal and deliberate processes which must mark 
the act of change as at once solemn and fully advised. 

The distinction between constitutional provisions and ordinary 
laws is further lessened in those states which have adopted the 
initiative and the referendum both for constitution making and 
amending and for the passage of ordinary laws. By their intro¬ 
duction the formal difference between the constitution and a 
statute, adopted through their use, has been very largely removed. 

In England, constitutional amendment is not distinguishable 
from simple legislation (page 216). Parliament may, by simple 
Act, change any, even the most fundamental, principle of govern¬ 
ment that the deliberate opinion of the nation wishes to see 
changed. Where the constitution consists for the most part of 
mere precedent, and for the rest of Acts of Parliament or royal 
ordinances simply, it may be altered as easily as precedent may be 
departed from. In England that is not easily. The great con¬ 
servative force there is the difficulty with which Englishmen 
abandon established courses. 


306 THE GOVERNMENT OF THE UNITED STATES. 


In France constitutional amendment differs from ordinary 
legislation only in this, that the two chambers must sit together 
at Versailles, as a single National Assembly, when passing laws 
which affect the constitution (page 156). 

In Germany constitutional amendment differs from ordinary 
legislation only in the number of votes required for the passage 
of an amendment through the Bundesrath, in which fourteen 
negative votes will defeat it. In the United States, on the con¬ 
trary, constitutional amendment differs from ordinary legislation 
both in formal procedure and in the political powers called into 
action t6 effect it. 

Preliminary Steps of Amendment. — Legislatures, with 
us, cannot of themselves undertake any general revision of the 
fundamental law. In case a general revision of a state constitu¬ 
tion is sought to be effected, the legislature is empowered to pro¬ 
pose the calling of a popular convention to be chosen specially 
for the purpose; the question whether or not such a convention 
shall be called must be submitted to the people; if they vote for 
its being summoned, it is elected by the usual suffrage; it meets 
and undertakes the revision, and then usually submits the results 
of its labors to the popular vote, which may either accept those 
results, or reject them and fall back upon the old constitutional 
arrangements. 

In many of the states a proposition for the calling of such a 
convention may be submitted to the people only if adopted by a 
twodhirds vote of both houses of the legislature. The new state 
constitution, adopted in South Carolina (1895) and in Delaware 
(1897) were not submitted to the popular vote, but were promul¬ 
gated as law by the conventions which framed them. This 
method of adoption was once not uncommon; but it is now very 
unusual. 

Proposal of Amendments. — Legislatures may, however, 
themselves propose particular amendments to constitutional pro¬ 
visions. In some of the states a mere majority vote suffices for 
the preliminary adoption of amendments by the legislature, 
though in most states larger majorities, ranging from three-fifths 
of a quorum to two-thirds of all the elected members of each 
house, must' be obtained. But in almost all cases popular sane- 


THE GOVERNMENT OF THE UNITED STATES. 301 


tion must follow: a vote of the people being made an indispen¬ 
sable condition precedent to the incorporation of an amendment 
in the fundamental law. In many states, indeed, amendments 
proposed thus by the legislature must be adopted by two succes¬ 
sive legislatures, besides receiving the people’s sanction, before 
they can become part of the constitution. In some a popular vote 
intervenes between the two legislative adoptions which must be 
had before the desired amendment is effected. In Delaware 
amendments may be made without a popular vote, if adopted 
by a two-thirds vote in two successive legislatures, a renewal of 
the representative house by election intervening. 

In some of the states amendments to the constitution can also 
be proposed by the initiative of the people and when so proposed 
must be submitted to popular vote and, if adopted, become part 
of the constitution without the participation of the legislature. 

The details of these processes differ widely in different states. 
In Vermont only the senate can propose amendments, and it only 
at intervals of ten years. In Connecticut amendments can be 
originated only by the house of representatives. Various restric¬ 
tions, too, are in many of the states put upon the number of 
clauses of the constitution to which amendments can be proposed 
at any single legislative session, the number of times amend¬ 
ments may be submitted to the people within a specified term 
of years, and the method to be followed in the popular vote 
when more than one amendment is submitted. In most states, 
too, special popular majorities are required for the adoption of 
all constitutional changes. 

These processes of amendment have been found by no means 
so difficult as they seem. The habit of inserting in state consti¬ 
tutions enactments not properly belonging with constitutional 
provisions, and which must be subject to frequent alteration, has 
led to frequent appeals to the people for purposes of amendment, 
and has served to show how easy amendment may be made. So 
easy and normal, indeed, have appeals to the people in state 
affairs become that the constitution of New Hampshire goes the 
length of providing for the submission to the vote of the people 
every seven years of the question whether or not the state con¬ 
stitution shall be revised by a convention called for the purpose, 


308 THE GOVERNMENT OF THE UNITED STATES. 


while that of Iowa commands the submission of the same ques. 
tion to the people every ten years, that of Michigan every sixteen 
years; and the constitutions of New York, Ohio, Oklahoma, and 
Maryland direct its submission every twenty years. 

Conflict of Laws. — The plan of leaving to the states the 
regulation of all that portion of the law which most nearly touches 
our daily interests, and which in effect determines the whole 
structure of society, the whole organic action of industry and 
business, has some very serious disadvantages: disadvantages 
which make themselves more and more emphatically felt as 
modern tendencies of social and political development more and 
more prevail over the old conservative forces. When the Consti¬ 
tution of the Union was framed the states were practically very 
far distant from one another. Difficulties of travel very greatly 
restricted intercourse between them : being, so to say, physically 
separate, it was no inconvenience that they were also legally sepa¬ 
rate. But now that the railroad and the telegraph have made 
the country small both to the traveller and to the sender of mes¬ 
sages the states have been geographically and socially compacted. 
Above all, they have been commercially and industrially knit 
together. State divisions, it turns out, are not natural economic 
divisions; they practically constitute no boundaries at all to any 
distinctly marked industrial regions. Variety and conflict of 
laws, consequently, have brought not a little friction and confu¬ 
sion into our social and business arrangements. 

Detrimental Effects. — At some points this diversity and 
multiformity of law almost fatally affect the deepest and most 
abiding interests of the national life. Above all things else, it 
has touched the marriage relation, that tap-root of all social 
growth, with a deadly corruption. Not only has the marriage tie 
been very greatly relaxed in some of the states, while in others it 
retains its old-time tightness, so that the conservative rules which 
jealously guarded the family, as the heart of the state, promise 
amid the confusion to be almost forgotten; but diversities be¬ 
tween state and state have made possible the most scandalous 
processes of collusive divorce and fraudulent marriage. 

In the Matter of Taxation so great a variety of law 
obtains among the states as to preclude in part a normal and 


THE GOVERNMENT OF THE UNITED STATES. 309 

healthy economic development. Special taxes drive out certain 
employments from some states, special exemptions artificially 
foster them in others; and in many quarters ill-judged or ill- 
adjusted systems of taxation tend to hamper industry and 
exclude capital. So, too, in the matter of corporations diversity 
of state law works great confusion and partial disaster to the 
interests of commerce and industry, not only because some 
states are less careful in their creation and control of corpora¬ 
tions than others, and so work harm to their own citizens, but 
also because loosely or unwisely incorporated companies created 
by the laws of one state may do business and escape proper 
responsibility in another state. 

In the Criminal Law, again, variety works social damage, 
tending to concentrate crime where laws are lax, and to under¬ 
mine by diffused percolation the very principles which social 
experience has established for the control of the vicious classes. 
So, too, in laws concerning debt, special exemptions or special 
embarrassments of procedure here, there, and everywhere impair 
that delicate instrument, credit, upon whose perfect operation the 
prosperity of a commercial nation depends. 

Proposals of Reform. — It is in view of such a state of 
affairs, such a multiformity and complexity of law touching mat¬ 
ters which ought, for the good of the country, to be uniformly 
and simply regulated throughout the Union, that various exten¬ 
sions of the sphere of the federal government have been proposed 
by sanguine reformers, who would have all interests which need 
for their advancement uniform rules of law given over to the care 
of Congress by constitutional amendment. 

Evils of the Case Easily Exaggerated. —The extent of 
the legal friction and confusion complained of may, however, 
easily be exaggerated. It is in most cases a confusion of detail 
and of procedure rather than of principle or substance, and has 
more exasperations for the lawyer than for the layman. Unques¬ 
tionably there is vastly more uniformity than diversity. Nearly 
all the states have built up their law upon the ancient and com¬ 
mon foundation of the Common Law of England, the new states 
borrowing their legislation in great part from the old. Nothing 
could afford clearer evidence of this than the freedom with which, 


BIO THE GOVERNMENT OF THE UNITED STATES. 


in the courts of nearly every state in the Union, the decisions 
of the courts of the other states, and even the decisions of the 
English courts, are cited as suggestive or illustrative, some' 
times also as authoritative, precedent. Everywhere, for instance, 
the laws of property rest upon substantially the same bases of 
legal principle, and everywhere those laws have been similarly 
freed from the burdens and inequalities of the older system from 
which they were derived. Everywhere there is the same facility 
of transfer, the same virtual abolition of all feudal character¬ 
istics of tenure, the same separation between the property in¬ 
terests of man and wife, the same general rules as to liens and 
other claims on property, the same principles of tenancy, of 
disposition by will, and of intestate inheritance. Every¬ 
where, too, contracts, common carriage, sales, negotiable paper, 
and partnership rest upon similar principles of practically uni¬ 
versal acceptance. We feel the conflicts, because we suffer under 
their vexations; while we fail to realize and appreciate the uni¬ 
formities, because they are normal and have come to seem matters 
of course. It must be acknowledged, moreover, that even within 
the area of irritation there are strong corrective forces at work, a 
growing moral sentiment and a fashion of imitation, promising 
the initiation and propagation of reform. As the country grows 
socially and politically, its tendency is to compact, to get a com¬ 
mon thought and establish common practices. As it compacts, 
likenesses will be emphasized, diversities pared and worn away. 

Louisiana and New Mexico stand apart with a peculiar law of their own, 
unlike the law of the rest of the states, because based upon the civil law of 
France and Spain, which is Roman law filtered through the histories of the 
Romance nations. Inevitably, however, the laws of these exceptional com¬ 
munities have approximated in some degree to the legal systems of the rest 
of the Union ; and they will draw still closer to them in the future. 

Interstate Law : Commerce. — In a country being thus 
compacted, thus made broader than its states in its feelings and 
interests, thus turned away from the merely local enterprise of 
its early industrial history to the national commerce and produc¬ 
tion of the present generation, state lines must coincide with the 


THE GOVERNMENT OF THE UNITED STATES. 311 


lines of very few affairs which are not political: there must he 
many calls for the adjusting weight of an authority larger than 
that of any single state. Most such interests, happily, are 
commercial in their nature, and with the regulation of interstate 
commerce Congress has always been charged. It was to give 
Congress this power, indeed, that the great constitutional con¬ 
vention was called: interstate commerce was one of the chief 
sources of the alarming friction between the states which marked 
that time of crisis. It is by the operation of this power that the 
great railroad systems of this country, and the endless telegraph 
and telephone lines, have come under the guardianship, and, so 
far as Congress has chosen, under the regulation of the federal 
government. Federal law cannot touch agencies of commerce 
which lie wholly within a single state; but there are nowadays 
very few such agencies, and the jurisdiction of Congress over 
commerce, where it does exist, is exclusive of all interference by 
the states. Federal law controls all navigable waters which 
constitute natural highways of interstate traffic or intercourse, 
whether directly or only through their connections ; it extends to 
such waters, not only, but also to the control of the means by 
which commerce may cross them in its land passage, to the 
construction, that is, of bridges over navigable waters for the 
facilitation of land traffic. It excludes every state tax or 
license law, every state regulation whatever, that in any way 
affects by way of restriction or control any movement of com¬ 
merce or intercourse between the states. 

Posts and Telegraphs. — Directly supplementary to the 
power of Congress over interstate commerce is its power to 
establish post-offices and post-roads. This has been interpreted 
to bestow upon Congress the right to facilitate telegraphic inter¬ 
course between the states by taking measures to break down 
exclusive privileges granted by a state; and it must undoubtedly 
be taken as rounding out to a perfect wholeness the control of 
the general government over the means of communication 
between state and state. 

Of course, too, this is a jurisdiction which must necessarily ad¬ 
vance with lengthening strides as the movements of our already 


312 THE GOVERNMENT OF THE UNITED STATES. 


vast commerce become yearly even wider still and more rapid. 
It has been made, indeed, to carry also a promise even of federal 
ownership of the telegraph systems of the country, and of a very 
much more extensive regulation of railway management than 
has yet been ventured upon. 1 The most significant step yet 
taken was the creation, in 1887, of an Interstate Commerce 
Commission charged with the prevention of unjust discrimina¬ 
tions in railroad rates either for freight or passage. This Com¬ 
mission has already become one of the most important judicial 
bodies of the nation, and illustrates a very important experiment 
in federal control. 

Citizenship. — Citizenship in the United States illus¬ 
trates the double character of the government. Whoever pos¬ 
sesses citizenship at all is a citizen both of the United States 
and of the state in which he lives. He cannot be a citizen of 
the United States alone, or only of a state; he must be a citizen 
of both or of neither: the two parts of his citizenship cannot 
be separated. The responsibilities of citizenship, too, are both 
double and direct. Under our federal system punishment for the 
violation of federal law falls directly upon individuals, as does 
punishment for the violation of state law; the obligation of obe¬ 
dience is in both cases direct: every citizen must obey both federal 
law and the law of his own state. His citizenship involves direct 
relations with the authorities of both parts of the government 
of the country, and connects him as immediately with the power 
of the marshals of the United States as with the power of the 
sheriff of his own county, or the constable of his own town. 

The population of the United States is probably less stationary 
in its residence than the population of any other country in the 
world, and frequent changes of residence have led to a great 
facilitation of the transfer of citizenship from one state to 
another. A very brief term of residence in a new home in an¬ 
other state secures the privileges of citizenship there: but in 
transferring his state citizenship a citizen does not affect his 

1 The control of both the railroads and the telegraph systems has bee* 
taken over by the federal government for the period of the war. 


THE GOVERNMENT OE THE UNITED STATES. 313 


citizenship of the United States at all. The term of residence 
required for the acquirement of the privilege of suffrage varies 
from three months to two years and a half, hut is in most cases 
one year. 

Elements of Confusion. — A very considerable amount of 
obscurity, it must be admitted, surrounds the question of citizen¬ 
ship in the United States. The laws of our states have so freely 
extended to aliens the right to hold property, and even the right 
to vote after a mere declaration of intention to become naturalized 
citizens (see page 320), — have, in brief, so freely endowed aliens 
with all the most substantial and distinguishing privileges of citi¬ 
zenship,— that it has become extremely difficult to draw any 
clear line, any distinction not merely formal, between citizens 
and aliens. Of course if a person who is not formally naturalized 
exchanges residence in a state in which he was allowed the priv¬ 
ileges of citizenship for residence in a state in which those priv¬ 
ileges are denied him, he can complain of no injustice or inequal¬ 
ity. The Constitution of the United States commands that “ the 
citizens of each state shall be entitled to all the privileges and 
immunities of citizens in the several states ”; but only federal 
law admits aliens to formal citizenship, and only formal citizen¬ 
ship can give to any one, wherever he may go, a right to the 
privileges and immunities of citizenship. The suffrage in par¬ 
ticular is a privilege which each state may grant upon terms of 
its own choosing, provided only that those terms be not inconsis¬ 
tent with a republican form of government, and with the Consti¬ 
tution of the United States. 

Naturalization. —Naturalization is the name given to 
the acquirement of citizenship by an alien. The power to pre¬ 
scribe uniform rules of naturalization rests with Congress alone, 
by grant of the Constitution. The states cannot make rules of 
their own in the matter, though they may, singularly and incon¬ 
sistently enough, admit to the privileges of citizenship on what 
terms they please (page 220). The national naturalization law 
requires that the person who wishes to become a citizen must 
apply to a court of law in the state or territory in which he 


314 THE GOVERNMENT OF THE UNITED STATES. 


desires to exercise the rights of citizenship for formal papers 
declaring him a legal citizen; that before receiving such papers 
he must take oath to be an orderly and loyal citizen and must 
renounce any title of nobility he may have held; and that in 
order to obtain such papers he must have lived in the United 
States at least five years, and in the state or territory in which 
he makes application at least one year; and at least two years 
before his application he must have declared in court under oath 
his intention to become a naturalized citizen. 

It is not necessary for a person who became a resident of the 
United States three years before coming of age to make such a sworn 
declaration of his intention to become a citizen. If a man who has made 
such sworn declaration dies before taking out his papers of naturalization, 
his widow and minor children may become citizens by merely taking the 
necessary oath of citizenship at the proper time. The children of persons 
who become naturalized, if they live in the United States, and are under, 
twenty-one years of age when their parents take the oath of citizenship, 
become citizens by virtue of the naturalization of their parents. 

In Germany, the terms and conditions upon which foreigners are to be 
admitted to citizenship are also regulated by federal law ; while in Switzer¬ 
land citizenship in its fulness can be conferred only by cantonal law, 
though naturalization is regulated by federal provision. The European 
states have, however, very few of the problems of naturalization which 
confront and confound us in the United States. The whole world is not 
coming to them as it is coming to us. 

Citizenship under a Confederation. — The possession of a 
national naturalization law is one of the practical political features which 
distinguish our general government from the government of a mere 
confederation. The states which compose it are the only ‘ citizens ’ of a 
confederation: for the individual there is no federal citizenship; and the 
transfer by an individual of his citizenship from one state to another 
within the confederation is as much a mere matter of international comity 
as if the states were not bound together by any common law. 

Central Governments of the States. — The governments 
of the states depend for their structure and powers entirely upon 
written fundamental law, — upon documents which we may call 
popular charters. It was, as I have said, upon the models and 
precedents furnished by the governments of the thirteen original 
states that the federal government was constructed, and this was 
one of the features copied: the state governments, no less dis- 


THE GOVERNMENT OF THE UNITED STATES. 315 


tinctly than the federal government, rest upon fundamental law 
based upon the explicit assent of the people or their representa¬ 
tives. 

A very great uniformity of structure is observable among 
the central governments of the states in all general features. One 
of the most obvious points of resemblance between them is the 
complete separation and perfect coordination of the three great 
departments of governmental action, — the legislative, the execu¬ 
tive, and the judicial; and these are set apart and organized under 
the state constitutions with a very much greater particularity than 
characterizes the provisions of the federal constitution. 

The State Legislatures: their Powers. — The state con¬ 
stitutions supplement the Constitution of the Union, providing 
for the exercise of all powers not bestowed by the federal charter; 
and the legislatures of the states may be said, in general terms, 
to possess all law-making powers not given to Congress. But this 
is by no means a complete statement of the case. State constitu¬ 
tions contain strict limitations of power no less than does the 
Constitution of the United States. Some powers there are which 
are altogether withheld: which cannot under our system be 
exercised by any existing authority: which have been granted 
neither to Congress nor to the legislatures of the states. Such, 
for example, are the power to grant to any person or class of per¬ 
sons exclusive political privileges or immunities, the power to 
bestow hereditary privileges or honors, and the power to abridge 
in any way the equal rights to life, liberty, and property. These 
may safely be said, however, to be powers which no state legis¬ 
lature would in any case dream of exercising, inasmuch as they 
would have to be exercised, if exercised at all, in the face of a 
public opinion which would certainly refuse reelection to any 
legislator who should violate the principles of republican govern¬ 
ment so strenuously worked out in our history, from Magna Charta 
down, and now so warmly cherished by all classes of our people 
that no denial of them could stand upon our statute books a single 
twelve-month. These are at most limitations put upon reaction. 

Limitations of Length of Session, etc. — There are other 
limitations, however, of a very different character contained in 
our state constitutions: limitations meant especially to control 


316 THE GOVERNMENT OE THE UNITED STATES. 


the action of legislatures within the sphere of their proper and 
undoubted powers, and unquestionably based upon a general dis¬ 
trust of the wisdom, if not of the honesty, of legislators. Thus 
our constitutions very commonly forbid all private or special 
legislation, confining legislatures to the passage of general laws 
applying uniform rules to all persons and all cases alike. They 
limit, moreover, in very many cases, the length and frequency of 
legislative sessions , 1 providing that the legislature shall convene, 
for instance, only once in every period of two years, and shall 
continue its biennial session for not more than a certain number 
of days, except under special or exceptional conditions, when 
extra sessions may be called by the governor or regular sessions 
extended by a special two-thirds or three-fifths vote. Many con¬ 
stitutions contain, also, minute provisions concerning the conduct 
of legislation, forbidding the introduction of bills later than such 
and such a day of a limited session, prescribing the general form 
of bills, limiting their subject-matter to a single object each, and 
even commanding the manner of their consideration. 

Other Limitations. — More than this, as we have seen, 
there are certain classes of legislative provisions which have been 
removed beyond the cognizance of legislatures by being put into 
the constitutions themselves : such as exemptions of certain classes 
of property from seizure for private debt (generally called “ home¬ 
stead exemptions’’), ‘ prohibition’ provisions, etc. The embodi¬ 
ment of such measures in constitutions is intended to put 
them beyond legislative interference, — is a limitation of the 
same indirect sort as a Bill of Bights. It is usual, also, for our 
state constitutions to limit the power of legislatures to create 
corporations, by provisions which direct the passage of general 
laws of incorporation to be applied in a formal administrative 
manner by the courts, to which applications for incorporation 
are to be made. 

State Legislatures not Sovereign Bodies. —It will thus 
be seen that our state legislatures are not in any sense ‘ sovereign ’ 

1 The period to which the duration of legislative sessions is restricted 
varies, when imposed, from forty days (Wyoming) to ninety days (Colorado 
and Minnesota), the most common period being sixty days. 


THE GOVERNMENT 0>F THE UNITED STATES. 317 


bodies. There is a certain serviceable clearness of view, to be 
had by regarding the state governments as, in their legal as¬ 
pect, like corporations. Their legislatures are law-making bodies 
acting within the gifts of charters, and are by these charters 
in most cases very strictly circumscribed in their action. It 
is this fact which gives so unique a place of power under our 
system to the courts, the authoritative interpreters of the funda¬ 
mental law to which all legislation and all executive action must 
conform. 

Legislative Organization. — In every state the legislature 
consists of two houses, a senate and house of representatives, and 
in most of the states the term of senators is four years, that of 
representatives two years, one-half of the senate being renewed 
every two years at the general elections. There is no such differ¬ 
ence in character, however, between the two houses of the state 
legislatures as exists between the Senate and the House of Repre¬ 
sentatives of the United States. Connecticut, as we have seen 
(page 289), furnished the suggestion upon which the framers of 
the federal Constitution acted in deciding upon the basis and 
character of representation in the two federal houses ; for in the 
Connecticut legislature of that time one house represented the 
towns, as the confederate units of the state, while the other rep¬ 
resented the people directly. Even Connecticut has now aban¬ 
doned this arrangement, however, and in almost all the states 
representation in both houses is based directly upon population, 
the only difference between the senate and house being that the 
senate consists of fewer members representing larger districts. 
Often, for instance, each county of a state is entitled to send 
several representatives to the lower house of the legislature, 
while several counties are combined to form a single senatorial 
district. 

Reasons for Two Houses in State Legislatures. — There 
is, consequently, no such historical reason for having two houses 
in the states as exists in the case of the federal government. The 
object of the federal arrangement is the representation of the 
two elements upon which the national government rests, namely, 
the popular will and a federal union of states. The state legis¬ 
latures have two houses simply for purposes of deliberateness in 


318 THE GOVERNMENT OF tfHE UNITED STATES. 


legislation, in order, that is, that legislation may be filtered 
through the debates of two coordinate bodies, representing 
slightly differing constituencies, though coming both directly 
from the people, and may thus escape the taint of precipitation 
too apt to attach to the conclusions of a single all-powerful 
popular chamber. The double organization represents no prin¬ 
ciple, but only an effort at prudence. 

The reason for our having double legislatures cannot, however, 
be so simply explained. It is compounded of both deliberate and histori¬ 
cal elements. Its historical grounds are sufficiently clear: the senates 
of our states are lineal descendants of the councils associated with the 
colonial governors, though they now represent a very different principle. 
The colonial councils emanated from the executive, and may be said to 
have been parts of the executive, while our senates emanate from the 
people. Then, too, there was the element of deliberate imitation of 
English institutions. One hundred years ago England possessed the 
only great free government in the world ; she was, moreover, our mother 
land, and the statesmen who formed our constitutions at the revolution 
naturally adopted that English fashion of legislative organization which 
has since become the prevailing fashion among all liberalized govern¬ 
ments. Possibly, too, they were influenced by more ancient example. 
The two greatest nations of antiquity had had double legislatures, and, 
because such legislatures existed in ancient as well as in modern times, 
it was believed that they were the only natural kind. 

Historical Precedents. —Greeks, Romans, and English alike 
had at first, it is true, only a single law-making body, a senate represent¬ 
ing the elders or nobles of the community, associated with the king, and, 
because of the power or rank of its members, a guiding authority in the 
state. In all three nations special historical processes produced at length 
legislatures representing the people also ; popular assemblies were, on one 
plan or another, coordinated with the aristocratic assembly, and pres¬ 
ently the plan of an aristocratic chamber and a popular chamber in close 
association appeared in full development. We copied the English cham¬ 
bers when they were in this stage of real coordination ; before her legis¬ 
lature had sustained that great change, which Greece and Rome also had 
witnessed, whereby all real power virtually came to rest again with a 
single body, the popular assembly. 

Terms of Senators and Representatives. — Among the older 
states of the union there is a more noticeable variety of law as to the 
terms of senators and representatives than is to be found in most of 
the constitutions of the newer states. In Massachusetts, for instance, 
the term of both senators and representatives is a single year only. 


THE GOVERNMENT OE THE UNITED STATES. 


319 


In New Jersey senators are elected for three years, one-third of the senate 
being renewed every year at the election for representatives, whose term 
in New Jersey is but one year. A few of the states, however, both new 
and old, limit the term of senators to two years, the usual term of repre¬ 
sentatives ; while in Louisiana representatives are given the term usually 
assigned to senators, namely, four years. 

Names of the Houses. — There is some variety among the 
states as regards the name by which the lower house of the legislature is 
known. In New York the popular house is called “the Assembly” ; in 
Virginia, the “House of Delegates”; in New Jersey, the “General 
Assembly,”—a name usually given in most of the states to the two 
houses taken together. 

The Qualifications required of senators and representa¬ 
tives vary widely in the different states, but not in any essen¬ 
tial point of principle. It is universally required, for example, 
that members of the legislature shall be citizens; it is very 
generally required that they shall be residents of the states, 
sometimes that they shall be residents of the districts for 
which they are elected; and it is in almost all cases required 
that a member of the legislature shall have reached a certain 
age. Variety appears in these provisions only in respect of 
details, as to the length of time citizenship or residence shall 
have been acquired before election, the particular age necessary, 
etc. The age required varies in the case of senators from 
twenty-one to thirty years, in the case of representatives from 
twenty-one to twenty-five. 

Legislative Procedure. —The same general rules of 
organization and procedure are observed in the constitution 
and business both of Congress and of the state legislatures. 
The more numerous branch is in all cases presided over by 
an officer of its own election who is called the ‘ Speaker ’; and 
the senate sits under the presidency, generally, of a Lieutenant- 
Governor, who occupies much the same place in the govern¬ 
ment of the state that the Vice-President of the United States 
occupies in the national government. He is contingent substi¬ 
tute for the governor. In twenty-seven of the states it is re¬ 
quired that the votes of a majority, not of a quorum merely, but 
of the full number of members elected to each house, shall be 
necessary for the passage of a bill. 


820 the government of the united states. 


Standing Committees. — The houses of the state legis¬ 
latures, too, being separated from the executive in such a way 
as to be entirely deprived of its guidance, depend upon stand¬ 
ing committees for the preliminary examination, digestion, and 
preparation of their business, and allow to these committees 
an almost unquestioned command of the time and the conclu¬ 
sions of the legislature. The state legislatures of the early 
time served as models for Congress. They and the legislatures 
of the later states, made like them, have retained substantially 
their first plan of organization, following the rules of parlia¬ 
mentary practice universally observed among English-speaking 
peoples; and they and Congress alike have had in the main 
the same development. As they have grown larger they have 
grown more dependent upon their advisory parts, their com¬ 
mittees. 


In several states the constitutions themselves command the refer¬ 
ence of all hills to committees and forbid the passage of any measure 
which has not been referred and reported upon. 

The Suffrage. — The suffrage is in all the states given 
by constitutional provision to male citizens twenty-one years 
of age; but it does not in all the states stop there. Several of 
the states extend the privilege of voting also to every male resi¬ 
dent of foreign birth who is twenty-one years of age and has 
declared his intention to become a naturalized citizen; and 
several of the states grant it to every male citizen or ‘inhabi¬ 
tant’ of voting age. The laws of almost all the states require 
residence in the state for a certain length of time previous to 
the election in which the privilege is sought to be exercised 
(the period varies all the way from three months to two years 
and a half), as a condition precedent to voting; most require 
a certain length of residence in the county also where the 
privilege is to be exercised; some a certain length of residence 
in the voting precinct. Many states require all voters to Have 
paid certain taxes; in Delaware they are required to have paid 
a fixed registration fee; but no state except Rhode Island and 
South Carolina has a property qualification properly so-called. 
In South Carolina it is required that each voter shall be able 


THE GOVERNMENT OF THE UNITED STATES. 31 1 

to read and write, or, if illiterate, shall own property valued at 
three hundred dollars. 

In several of the states the suffrage is confined to those who can read the 
constitution or the laws of the state. It is common, of course, throughout 
the country to exclude criminals, insane persons, and idiots ; and in sev¬ 
eral states the privilege is withheld from those who bet on elections. In 
Florida betting on an election not only excludes from the election in con¬ 
nection with which the offence is committed, but is punished, upon con¬ 
viction, by entire and permanent disfranchisement. 

Women are accorded the privilege of voting in school elections 
in a number of states, and in a still larger number they are made 
eligible to be elected to school boards. Several states have extended 
the franchise to them in municipal elections ; and, although the con¬ 
stitutions of most of the states declare the suffrage to be restricted 
to males, fifteen have conferred it upon women in all elections. 1 

The ballot, or voting paper, is throughout all the states the in¬ 
strument of voting, and they have adopted the so-called Australian 
ballot system, by which voters are secured a complete privacy 
in the preparation of the voting papers and in the casting of their 
votes when prepared. 

The State Courts. — A very great variety exists among 
the laws of the several states regarding the constitution, 
functions, and relative subordination of the courts. A general 
sketch of the state courts must, ‘therefore, be made in very 
broad outline. Perha.ps in this department of state law, as in 
others, there may be said to be, despite a bewildering variety 
of detail, sufficient unity of general feature to warrant a gener¬ 
alized description, and to render unnecessary the unsatisfactory 
expedient of choosing the institutions of a single state as in some 
broad sense- typical, and describing them alone. 

The courts of our states are in no sense organs of federal justice, 
as the courts of the German states are. They have an entirely 
independent standing and organization and an entirely indepen¬ 
dent jurisdiction. Their constitution and procedure are in no 
way affected by federal law, — except of course by way of lim¬ 
itation ; — their sphere is a sphere apart. The series of courts 
1 These are Arizona, California, Colorado, Idaho, Kansas, Michigan, Mon¬ 
tana, Nevada, New York, Oklahoma, Oregon, South Dakota, Utah, Washing¬ 
ton and Wyoming. Illinois has conferred upon women the suffrage in certain 
elections. 


322 THE GOVERNMENT OF THE UNITED STATES. 


in each state, therefore, is complete. Every state has its supreme 
court, as well as its inferior tribunals, and appeals lie from the 
state courts to the courts of the United States only in cases in¬ 
volving federal law or in cases where the character of the parties 
to the suit does not give any state court complete jurisdiction. 

One of the most characteristic features of our state 
courts is what I may call their local attachment. In most cases 
the judges are not appointed by any central authority but are 
elected by the voters of the district or circuit in which they 
hold court; they, like members of legislatures, may be said to 
have * constituents/ Their responsibility is thus chiefly a 
responsibility to the electors, a popular rather than an official 
responsibility. The courts are held together in a common 
system and to a common duty only by lav:, therefore, and not 
by discipline or official subordination to superior judicial authori¬ 
ties. The courts may be said to be local rather than central 
organs; they are integrated only in opinion , — only by the 
course of appeal, the appellate authority of the higher over the 
lower courts in points of law. 

This localization of the organs of government, in their origin as 
well as in their functions, is a general characteristic of American 
political organization, — a characteristic which appears most con¬ 
spicuously in the arrangements of local government, which is not 
so much organized as left to organize itself under general statutes, 
for whose enforcement no central administrative machinery is 
provided. 

Common Law Courts. — There are, usually, four grades 
of jurisdiction in the judicial systems of the states, with four 
grades of courts corresponding. There are generally .(1) Justices 
of the Peace , who have jurisdiction over all petty police offences 
and over civil suits for trifling sums; who conduct preliminary 
hearings in cases of grave criminal offence, committing the 
accused, when there is prima facie proof of guilt, for trial by a 
higher court; and who are, in general terms, conservators of' the 
peace. They act separately and have quite lost the high 
judicial estate which still belongs to the English Justices, from 
whom they take their name. Their decisions are in almost all 
cases subject to appeals to higher courts. 


THE GOVERNMENT OF THE UNITED STATES. 323 


Mayor’s courts in the towns are generally the same in rank and 
jurisdiction, so far as criminal cases are concerned, as the courts of Jus¬ 
tices of the Peace. 

(2) County or Municipal Courts, which, hear appeals 
from Justices of the Peace and from Mayor’s courts, and whose 
own original jurisdiction is one step higher than that of the 
Justices, including civil cases involving considerable sums, and 
criminal cases generally not of the gravest character. 

Often, however, courts of this grade, especially the municipal 
courts of the larger towns, are given a much higher jurisdiction and are 
coordinated in some respects with courts of the next higher grade, the 
Superior Courts. In New York, New Jersey, and Kentucky the county 
courts retain the English name of Quarter Sessions. 

(3) Superior Courts, which hear appeals from the county 
and municipal courts, and generally from all inferior courts, and 
which are themselves courts of high original jurisdiction of the 
most general character in both civil and criminal cases. They 
may be said to be the general courts which give to the courts of 
lower grade their name of ‘ inferior.’ County and municipal 
courts, as their names imply, sit only for certain small districts; 
but the districts over which superior courts have jurisdiction 
usually cover a wide area, necessitating the sitting of each such 
court in several places in succession. In other words, superior 
courts are generally circuit courts, and in many states bear that 
name. 

‘ Circuit courts ’ is, indeed, the most generally used name for 
courts of this grade, that is, for the principal courts of the state; though 
in almost as many states they are called ‘ district courts. ’ In most of the 
states these courts have special judges of their own; but in Maine and 
New Hampshire they are held by the judges of the supreme court on 
circuit. 

In some states civil is separated from criminal jurisdiction in this 
grade, and distinct courts are created for each. Thus in Texas there are 
District courts for civil causes, District Criminal courts for criminal cases. 
In Pennsylvania courts of Quarter Sessions are the courts of general crimi¬ 
nal jurisdiction, as in England, civil causes going to the courts of Common 
Pleas. Delaware has criminal courts called courts of Gaol Delivery. 

(4) Supreme Courts, which in most of the states have no 
original jurisdiction at all, but only appellate jurisdiction, hearing 


324 THE GOVERNMENT OF THE UNITED STATES. 


appeals in all classes of cases (except such as involve only trifling 
offences or small sums of money) from the superior courts and 
from various inferior courts. 

(5) In several states there are supremest courts above the ‘su¬ 
preme.’ Thus in New York there is a Supreme Court, which has its Appel¬ 
late Division ; the Appellate Division has four several parts or sections 
which sit and hear appeals in the four judicial districts into which the state 
is divided ; and over all there is a Court of Appeals, a court of general 
revision. In New Jersey there is a supreme court above the circuit, which 
is itself of high appellate jurisdiction, and a Court of Errors and Appeals 
above the supreme ; in Louisiana the order is reversed and there is a 
supreme court above a court of appeals ; in Illinois a supreme court above 
certain district “ appellate courts ” ; and in Kentucky a somewhat similar 
arrangement prevailed until the Constitutional revision of 1891. In Texas 
there are two coordinate supreme courts : one, called the supreme, for the 
hearing of civil cases only, the other, called the court of appeals, for the 
hearing of criminal cases and of civil eases brought up from the county 
courts. 

The name 4 court of appeals ’ is found also in California, Maryland, Vir¬ 
ginia, and West Virginia. 

In five of the original states (New Hampshire, Massachusetts, 
Rhode Island, New York, New Jersey), and in Maine, the supreme 
courts have, anomalously enough, original as well as appellate jurisdic¬ 
tion in all cases; but in the newer states such an arrangement is never 
found. In the case of New York, however, it is hardly accurate to say 
that the Supreme Court has original jurisdiction, but rather that its judges 
have, acting separately, and subject to the oversight of the several sections 
of the 4 Appellate Division.’ 

In several of the larger cities of the country there are complete 
sets of courts, reproducing the state judiciary in small. Thus in Baltimore, 
for example, there are city courts from the lowest grade up to a 4 Supreme 
Bench of Baltimore City.’ 

Courts of Equity. — ‘ Equity ’ is defined, under the legal 
systems of England and the United States, as “that portion of 
remedial justice which is exclusively administered by a court of 
equity, as contradistinguished from that portion of remedial jus¬ 
tice which is exclusively administered by a court of common law ” 
(Story). In other words, it is that portion of remedial justice 
which was administered in England by the Chancellors, who were 
''the keepers of the king’s conscience,’ and from whose court, as if 
from the king’s sense of justice, there issued writs from time to 
time for the remedy of wrongs for which the common law made 


THE GOVERNMENT OF THE UNITED STATES. 325 


no adequate provision (page 185). The early Chancellors were 
ecclesiastics imbued with Roman law as it had come down through 
the medium of the canon law, and both in their hands and in 
those of their lay successors of later times, who were the heirs of 
their principles and prerogatives, equity law and procedure became 
a very different thing from the law and procedure of £he common 
law courts. 

Fusion of Law and Equity. — As time has gone on equity 
and law have been largely fused, even in England, just as thejws 
gentium and the jus civile became merged in the development 
of the Roman law; and in most of the states of the Union the 
same courts exercise both equitable and common law jurisdic¬ 
tion. In several states the whole procedure even, in both juris¬ 
dictions has been made practically identical, and law is hardly 
distinguishable from equity. Generally, however, the dis¬ 
tinctive procedure at least has been preserved, and only courts 
of the superior and supreme grades have been given equitable 
jurisdiction, — jurisdiction, that is, over cases in which the 
remedy is equitable. In Alabama, Delaware, Michigan, Missis¬ 
sippi, New Jersey, Tennessee, and Vermont there are still 
special chancery courts. 

Equity processes of trial differ from common law processes, 
outwardly, chiefly in the fact that the testimony is written instead 
of oral, and that decisions of fact as well as of law rest with the 
judge instead of with a jury. Eor its special subject-matter equity 
jurisdiction generally embraces such matters as trusts, mistakes, 
frauds, etc., — matters hardly tangible by ordinary remedies. 

Probate Courts. — In most of the states there are special 
probate courts, — special courts, that is, charged with jurisdiction 
over the proof of wills, the administration of estates, the appoint¬ 
ment of guardians, administrators, etc., the care of the estates of 
wards, and, in general, of the proper disposition of the property of 
persons deceased. In some of the states, however, these functions 
are left to the ordinary courts of law. 

In England this probate jurisdiction was, from the first until a very 
recent date, a prerogative of the ecclesiastical courts, and in two of 
our states the probate courts retain the names of the officers who exer¬ 
cised this function in the place of the bishop ; in Georgia the court is 


326 THE GOVERNMENT OF THE UNITED STATES. 


called the court of the ‘ Ordinary,* in New York the ‘ Surrogate’s ’ court. 
In New Jersey, with a reminiscence of the same origin, it is called the 
‘ Prerogative ’ court. In several states, on the other hand, it is known, 
by virtue of one side of its function, as the ‘ Orphan’s’ court. 

Judges. — The judges of most of the state courts are 
elected, generally by the people, in a few cases by the legislature 
but in several states they are nominated by the governor and ap¬ 
pointed by and with the advice and consent of the Senate. In 
New Hampshire they are appointed by the governor by and with 
the advice and consent of the Council. 

Supreme court judges are usually elected by the people of the 
state at large ; circuit, district, county, municipal, and other judges by the 
electors of the areas in which they serve. 

The terms of judges range all the way from two years to a tenure 
during good behavior. The constitutions of more than three-fourths of 
the states permit the removal of judges by the legislature, or by the gov¬ 
ernor at the request of the legislature. In Florida, Massachusetts, and 
Rhode Island all judges of the higher courts hold during good behavior; 
in New Hampshire until seventy years of age. The length of the terra 
varies with the grade of the court, the tendency being to give longer terms 
to the judges of the higher courts. 

The qualifications required of judges by state law are not 
stringent. Only fourteen of the states require by law any 
identification of their judges with the legal profession; and 
only ten require ‘ learning in the law’; though custom and public 
opinion invariably confine the choice of judges to professional 
lawyers. Generally a certain age is required of judges (varying, 
where there is such a requirement, from twenty-five to thirty- 
eight years), besides, in most cases citizenship and residence in 
the state or circuit. As a rule single judges hold all the courts 
except the highest. Supreme courts have a more or less nu¬ 
merous ‘bench/ 

The ministerial officers of the state courts, the sheriffs, are 
generally not appointed by the judges or responsible to them, but 
elected by the people and answerable to ‘ constituents/ just as the 
judges themselves are. Even the clerks of the courts are often 
elected. 


The position of sheriff thus differs very materially from the 
position of a United States marshal (sec. 1317), the sheriff’s counterpart 


THE GOVERNMENT OF THE UNITED STATES. 


327 


in the federal judicial system. The marshal is appointed by the Presb 
dent of the United States, and is responsible to a central authority, is 
part of a centralized organization of justice. The sheriff, on the con¬ 
trary, is the organ of an extremely decentralized, an almost disintegrated, 
organization of justice. The bailiffs, the sheriff’s deputies, are usually 
the appointees of the sheriff. 

The State Executives. — The Executives of the states are 
the least distinct parts of state organization, the least susceptible 
of being adequately pictured in outline, or indeed in any broad 
and general way. Under our system of state law the executive 
officers of a state government are neither the servants of the legis¬ 
lature, as in Switzerland, nor the responsible guides of the legis¬ 
lature, as in England, nor the real controlling authority in the 
execution of the laws, as under our own federal system. The 
Executive of a state has an important representative place, as a 
type of the state’s legal unity; it has a weighty function of super¬ 
intendence, is the fountain of information, the centre and source 
of advice, the highest organ of administration to the general eye; 
but it cannot be said to have any place or function of guiding 
power. Executive power is diffused by our law throughout the 
local organs of government; only a certain formal superintendence 
remains with the authorities at the state capitals. 

Of course this does not apply to the governor’s veto power,— 
that contains real energy, — but only to executive functions proper j these 
are localized, not centralized, after the extremest pattern. 

Not all of the states have the same central executive 
officers. All have governors; a majority of them have lieutenant- 
governors ; all have secretaries of state; all have treasurers; 
almost all have attorneys-general; and a majority, superintend¬ 
ents of education. Many have also auditors: eleven have comp¬ 
trollers, and fifteen boards of education; four (Massachusetts, 
New Hampshire, Maine, and North Carolina) associate councils 
with their governors. 

For the rest, there are a great many minor officers of various 
functions in the different states ; superintendents of prisons, for instance, 
registrars of land offices, superintendents of labor, bureaux of agriculture, 
commissioners of mines, commissioners of immigration, etc. There is 


328 


THE GOVERNMENT OF THE UNITED STATES. 


no uniformity between the administrations of the states as regards these 
special offices; different states undertake different functions, new or old, 
and create new, or revive old, offices accordingly. 

The governor’s term of office is in almost all of the states 
either two or four years, although Massachusetts gives her gov¬ 
ernor a term of but a single year, while New Jersey elects hers 
for three. The lieutenant-governor, where such an officer is 
elected, has the same term as the governor, and is generally 
required to have the same qualifications. 

These qualifications consist, almost always, of citizenship of 
from two to twenty years’ standing, residence within the state of 
from one to ten years, and age of from twenty-five to thirty-five 
years. In Maine it is required that the governor shall be a 
native-born citizen. 

The terms of the other principal state officers are usually 
the same as the term of the governor, though it is not uncommon 
to give to treasurers, secretaries of state, attorneys-general, and 
auditors a longer tenure. The qualifications required of the dif¬ 
ferent officers are of the most various nature. 

The constitutions of many of the states still exhibit the jealousy 
of long terms of office which was so characteristic of the extreme demo¬ 
cratic feeling generated in the colonies by the constant friction between 
the representatives of the people and officials who owed their offices, not 
to election, but to royal appointment. Seven states limit official tenure 
to a maximum period of seven years; Texas makes two years the maxi¬ 
mum ; and Massachusetts, Virginia, and Maryland give express constitu¬ 
tional sanction to rotation in office. 

Many states effect such a limitation with reference to the tenure 
of the governor’s office by provisions setting bounds to the reeligibility 
of the governor. Thus some exclude their governors from successive 
terms; others allow only a single term to any one man within a specific 
period of, say, eight years; while still others withhold reeligibility al¬ 
together. 


Contrast between State and Federal Executives. —The 

federal executive was, as we have seen (page 289), constituted in 
quite close accordance with the models of previous state organiza,- 
tion; but the imitation can scarcely be said to have gone further 
than the adoption of the suggestion that the United States should 
have a single governmental head, a president, because the states 


THE GOVERNMENT OF THE UNITED STATES. 329 


had tried and approved a single presidency. For the rest, the 
president was given the character, as regards his relations with 
the other officials of the federal system, rather of an English sov¬ 
ereign than of a state governor. Certainly the contrast between 
the official place and power of the president and the place and 
power of the state governors of the present day is a very sharp 
and far-reaching contrast indeed. The president of the United 
States is the only executive officer of the federal government who 
is elected; all other federal officials are appointed by him, and 
are responsible to him. Even the chief of them bear to him, in 
theory at least, only the relation of advisers; though in fact, it 
must be acknowledged, they are in effect his colleagues. Of state 
officials associated with the governor it may, on the other hand, 
be said that both in law and in fact they are colleagues of the 
governor, in no sense his agents, or even his subordinates, except 
in formal rank and precedence. They, like himself, are elected 
by the people; he is in no way concerned in their choice. Nor 
do they serve him after election. They are not given him 
as advisers; they are, on the contrary, coordinated with him. 
North Carolina, indeed, calls her chief officers of state a ‘cabi¬ 
net ’; but they are not dependent upon each other even in counsel, 
and they are quite as independent of the governor as Congress is 
of the president. The only means of removal to which the prin¬ 
cipal officers of the states are subject is, ordinarily, impeachment , 
to which the governor also is equally exposed. Both they and 
he may be charged with official crimes and misdemeanors by the 
house of representatives, and tried, convicted, and removed by 
the senate of the state. Their only other responsibility is to the 
courts of law, to which, like other citizens, they are answerable, 
for actual breaches of law. Governor, treasurer, secretary of 
state, attorney-general, — all state officers alike, serve, not other 
officers, but the people, who elected them; upon the people they 
are dependent, not upon each other; they constitute no hierarchy, 
but stand upon a perfect equality. 

In the states of Delaware, Maryland, New Jersey, Pennsylvania, and 
Texas the secretaries of state are appointed by the governor, subject to 
confirmation by the senate ; in several states the attorney-general also is 
appointed j nor is it uncommon for the state superintendent of education 


330 THE GOVERNMENT OF THE UNITED STATES. 


to be an appointee of the governor ; and these facts offer apparent contra¬ 
diction to the statement that the several constituent parts of the state ex¬ 
ecutives stand always apart in complete independence and coordination, 
— especially when it is added that in one or two states officers so impor¬ 
tant as the secretary of state and the attorney-general hold during the 
pleasure of the governor. Several of the states empower their governors 
to suspend or remove subordinate officers against whom charges are pre¬ 
ferred, and to institute criminal proceedings against them in the courts. 
Maryland authorizes the summary removal of sundry minor officials by 
the governor, and Michigan and New York even the suspension of the sec¬ 
retary of state or the treasurer, in case of corruption or gross misconduct, 
until the legislature can act; and in Delaware the governor can remove 
any public officer “ convicted of misbehaving while in office, or of any in¬ 
famous crime.” But these cases constitute in fact no real exceptions: 
for the duties of such officers, after their appointment, are prescribed by 
constitutional provision or by statute, not by the governor ; and the 
governor may remove them, not at his whim, or for mere administra¬ 
tive reasons, but for just cause only, and as if he acted as an officer of 
justice. In brief, even when appointed by him, they do not depend upon 
him. 


Real Character of a State ‘Executive.’ — The governor 

therefore, is not the ‘ Executive 9 ; he is but a single piece of the 
executive. There are other pieces coordinated with him over 
which he has no direct official control, and which are of less 
dignity than he only because they have no power to control 
legislation, as he may do by the exercise of his veto, and because 
his position is more representative, perhaps, of the state govern¬ 
ment as a whole, of the people of the state as a unit. Indeed it 
may be doubted whether the governor and other principal officers 
of a state government can even when taken together be correctly 
described as ‘the executive,’ since the actual execution of the 
great majority of the laws does not rest with them but with the 
local officers chosen by the towns and counties and bound to 
the central authorities of the state by no real bonds of responsi¬ 
bility whatever. Throughout all the states there is a significant 
distinction, a real separation, between ‘ state ’ and ‘local 9 officials; 
local officials are not regarded, that is, as state officers, but as 
officers of their districts only, responsible to constituents, not to 
central authorities. Throughout the country the sheriffs and 
other county officers, the county treasurers, clerks, surveyors, 


THE GOVERNMENT OF THE UNITED STATES. 331 

commissioners, etc., and the town and city officials also, as well 
as the judges of the courts and the solicitors or district attorneys 
who represent the public authority before the courts, are, almost 
without exception, chosen by the voters of limited areas, and are 
regarded, for the most part, as serving, not the state, but their 
part of the state. Minor ‘ state ’ officers there are, — minor officers, 
that is, who ministerially serve the central offices, — and these 
are often appointed by the governor; but it is exceptional for the 
governor to control the local authorities by whom the laws are in 
fact put into actual operation. The president of the United States 
is the veritable chief and master of the official forces of the fed 
eral government; he appoints and in most cases can remove all 
federal marshals, district attorneys, revenue officers, post-office 
officials. But the governor of a state occupies no such position; 
nor does any high ‘ state ’ official; the central offices of a state 
constitute a system of supervision and report often, but seldom 
a system of control. 

In Michigan, it is true, all officials not legislative or judicial may 
be removed by the governor for just legal cause ; in New York, too, 
sheriffs, coroners, district attorneys, and county clerks are removable by 
the same authority, and in Wisconsin sheriffs, coroners, district attorneys, 
and registrars of deeds ; but such provisions are exceptional, and are not 
accompanied by a system of continuous central control. Government 
remains disjointed, — still lies in separated parts. 

Relations of the Local to the Central Organs of Govern¬ 
ment in the States. — It is characteristic of our state organization, 
therefore, that the counties, townships, and cities into which the 
states are divided for purposes of local government do not serve 
as organs of the states exactly, but rather as independent organ¬ 
isms, constituted what they are by state law, indeed, but, after 
being set up, left to themselves almost as entirely as if they were 
self-constituted. They elect their own officers, and, except for 
the occasional mandates of the courts, go their own paces in en¬ 
forcing the general laws of the state. 

Our local areas are not governed , in brief; they act for themselves. 
Self-government implies, when used in its strict historical meaning, that 
the officers of local administration are officers of the state , of the central 


332 THE GOVERNMENT OF THE UNITED STATES. 


authority, whatever may be the machinery of their appointment, and that 
their responsibility is central, instead of to their neighbors merely. The 
only sense in which the local units of our state organizations are governed 
at all is this, that they act under general laws which are made, not by 
themselves, but by the central legislatures of the states. These laws are 
not executed by the central executive authorities, or under their control, 
but only by local authorities acting in semi-independence. They are, so 
to say, left to run themselves. 

The Governor. —The usual duties of a state governor 
may be conveniently summed up under four general heads: 

(1) As towards the legislature, it is his duty to transmit to the 
houses at each regular session, and at such other times as may be 
required, full information concerning the state of the common¬ 
wealth, and to recommend to them such measures as seem to 
him necessary for the public good. It is also his duty in case 
of necessity for such a step, or upon the requisition of a sufficient 
number of legislators, to summon the houses to extra session. 

(2) He is commander-in-chief of the state militia, and as such 
is bound to see, not only that foreign invasion is repelled, but 
also that internal order is preserved. (3) He exercises the clem¬ 
ency of the state towards condemned persons, having the right 
to grant pardons to persons convicted of crime, to remit fines 
and penalties, under certain conditions, and to remove political 
disabilities incurred in consequence of conviction of crime; 
though he exercises these high prerogatives subject always to 
a definite responsibility to public opinion and to the laws. 

In some states, as notably in Pennsylvania, the power of grant¬ 
ing pardons is given to the governor, however, only in form, the sanction 
of a Board of Pardons being made necessary, whose action is semi-judicial. 
In New Jersey there is a judicial committee on pardons ; and in Connecti¬ 
cut the legislature alone can pardon: the governor can only reprieve until 
the end of the next session of the legislature. 

(4) In all the states with the single exception of North 
Carolina the governor’s assent is made necessary to the va¬ 
lidity of all laws not passed over his dissent by a special 
legislative vote upon a second consideration made in full view 
of his reasons for withholding his signature. And in Rhode 
Island, Ohio, and North Carolina, though the governor has no 


the government of the united states. 333 

veto properly so-called, he can compel the reconsideration of anji 
measure by the legislature. 

All bills which the governor signs, $>r upon which he does not 
take any action within a certain length of time, become law ; those which 
he will not sign he must return to the legislature with a statement of his 
objections. Generally he must return bills which he thus rejects to the 
house in which they originated, though in Kansas he must return them 
always to the house of representatives. 

The vote by which a bill may be passed over the governor’s veto 
varies very widely among the states. In Connecticut a mere majority 
suffices for its second passage ; in other states a three-fifths vote is re¬ 
quired, in some a two-thirds vote ; sometimes a majority of elected mem¬ 
bers (instead of a special number within a mere quorum ) must concur 
in a second passage; and sometimes two-tliirds of the elected members. 
In Missouri it is provided that the votes of two-thirds of the elected 
members shall be necessary in the house in which the measure originated, 
while a mere majority of the other house will suffice. 

In many of the states the governor is given the power to veto 
particular items in appropriation bills ; as regards all offier bills his 
approval or disapproval must cover all of the measure or none of it. 

The Secretary of State. — The title 1 Secretary of State, 
borne by a conspicuous officer in each of the states, is very apt 
to mislead those who have studied the English executive or the 
functions of our own federal minister of foreign affairs. The 
federal Secretary of State is first of all an executive minister, 
only secondarily a secretary; and the five principal Secretaries 
of State in England are equally without prominent secretarial 
functions. They are one and all executive heads of department. 

The federal Secretary of State is entitled to his official name 
chiefly by virtue of certain minor duties seldom thought of by the public 
in connection with the Department of State. He has charge, for example, 
of the seal of the United States ; he preserves the originals of all laws and 
of all orders, resolutions, or votes of the houses which have received the 
force of law ; he furnishes to Congress, besides consular and diplomatic 
reports, lists of passengers arrived in the United States from foreign 
countries, etc. 

The chief clerical features of the office which the five Principal 
Secretaries of State in England theoretically share (page 198) would seem 
to be represented by the necessity of the countersignature of some one of 
them to the validity of the sign-manual. 


834 THE GOVERNMENT OE THE UNITED STATES. 


The Secretaries of State in the commonwealths of our 
Union, on the contrary, can show substantial cause for holding 
their title; the making and keeping of records is the central 
duty of their office. It is usually their duty to register the 
official acts of the governor, to enroll and publish the Acts of 
the Legislature, to draw up all commissions issued to public 
officers, to keep all official bonds, to record all state titles to 
property, to keep and affix, where authorized, the seal of the 
commonwealth, to preserve accurate maps and careful records 
of the boundaries of the various civil districts of the state, 
(the counties, townships, etc.) and to give to all who legally 
apply duly attested copies of the public documents in their 
keeping. In brief, the Secretary’s office is the public record 
office. 

Often other duties are assigned to the Secretary of State. In 
one state, for instance, he is constituted Internal Improvement Com¬ 
missioner ; in another Surveyor-general. But such additional functions 
are not necessarily characteristic of his office. 

1200. It is to the Secretary of State in each commonwealth that the 
votes of the state’s electors for President and Vice-President are re¬ 
turned ; and it is he who transmits them to the president of the Senate 
to be opened in the joint session of the two houses. 

Votes in state elections also are generally returnable to the 
Secretary of State’s office, and the Secretary of State is very commonly 
one of the state canvassers of election returns. Such duties manifestly 
flow very naturally from the general duties of his office. 

The Comptroller, or that equivalent officer, the state 
Auditor , is public accountant. It is his function to examine 
and pass upon all claims presented against the state under 
existing provisions of law; to audit the accounts of all officers 
charged with the collection of the revenue of the state, filing 
their vouchers, requiring of them the necessary bonds, and 
crediting them with all sums for which they present the state 
Treasurer’s receipt; to ensure uniformity in the assessment and 
collection of the publio revenue by preparing and furnishing to 
the local fiscal officers the proper forms and instructions; to 
issue warrants for all legal disbursements of money from the 
treasury of the state, keeping a careful account with the state 
treasurer; to submit his books and accounts at any time to 


THE GOVERNMENT OF THE UNITED STATES. 335 


examination by the legislature, — in a word, to regulate the 
assessment, collection, and disbursement of the public moneys. 

The State Treasurer may be said simply to keep the 
public moneys subject to the warrants of the Comptroller. 
Without such warrant he can pay out nothing. 

These, manifestly, are not offices of control. The Comptroller, 
for example, can generally proceed against local fiscal officers through 
the local law-representatives of the state, the local states-attorneys, in the 
ordinary courts, for the purpose of securing the necessary bonds when 
these are not promptly or properly given, or of enforcing the payment of 
moneys withheld or uncollected ; and he may make test of the validity or 
sufficiency of official bonds by any means within his reach; but he has 
none but this indirect control, exercised through the courts over officers 
who refuse bond or who neglect the forms and instructions issued to them 
regarding the assessment and collection of taxes. The whole machinery 
of control is local, not central, —through courts and states-attorneys who 
are themselves elected by the same persons, in town or county, by whom 
the collecting officers themselves are chosen. The local fiscal officers are 
not officers of the state treasury, but officers of the towns and counties 
whom the state employs as its agents. 

The State Superintendent of Education often occupies a 
somewhat different position. It is frequently his prerogative 
to prescribe the qualifications of teachers and the methods by 
which they are to be selected; he is required to make a thorough 
inspection of the schools throughout the state; often he is 
given power to secure proper reports of school work through 
special inspectors appointed to act instead of local superin¬ 
tendents whose reports are irregular or unsatisfactory. School 
administration is recognized to require a certain degree of 
centralization of administrative authority, and so to constitute 
a legitimate exception to the general rules as to the constitution 
of executive power in the states. Still, even the power of a 
state Superintendent of Education does not often go very much 
beyond supervision. The powers of district or township school 
directors remain in most cases very absolute as regards the 
management of the schools. They are governed by statute, not 
by the state Superintendent. 

Constitutional Diffusion of the Executive Power. — The 

constitutions of at least seven of the states make very frank confession of 


336 the government of the united states. 


the diffusion of executive authority upon which I have dwelt as character- 
istic of our state system. Thus the constitution of Alabama provides that 
the executive power “shall consist of the governor, secretary of state, 
state treasurer, state auditor, attorney-general, and superintendent of 
education, and the sheriff for each county .” The constitutions of Arkan¬ 
sas, Colorado, Illinois, Minnesota, Pennsylvania, and Texas make similar 
enumerations, with the exception of the sheriffs of the counties. The 
Florida constitution of 1868 provided that the governor should be “as¬ 
sisted by a cabinet of administrative officers” appointed by himself, sub¬ 
ject to the confirmation of the senate; but clothed these officers with 
functions which made them in fact not assistants but colleagues. 

The constitutions of most of the other states declare the execu¬ 
tive power to be vested in the governor, but are hardly through with out¬ 
lining his functions before they provide for the erection of executive 
departments among which the greater part of executive power shall be 
parcelled out; so that the arrangement is everywhere practically that 
of those states which in effect declare the executive office to be ‘in com¬ 
mission’ by enumerating the officers who are to divide its duties. 

Full Legal, but no Hierarchical, Control. — This, then, is 
the sum of the whole matter: the control of law, exercised through the 
courts, is thorough and complete: statutes leave to no officer, either cen¬ 
tral or local, any considerable play of discretionary power: so far as pos¬ 
sible they command every officer in every act of his administration. But 
no hierarchy stands between an officer and the law. The several func¬ 
tions of executive power are segregated, — each official, so to say, serves his 
own statute. So thorough is the control attempted by legislation, — and 
so potent among us is the legal habit and conscience, the law-abiding 
sense, — that no official control, no hierarchical organization has been 
deemed necessary. 


Local Government. 

General Characteristics. — The large freedom of action 
and broad scope of function given to local authorities is the dis¬ 
tinguishing characteristic of the American system of government. 
Law is central, in the sense of being uniform and the command 
of the central legislature in each state; and its prescriptions are 
minute; but function and executive power are local. There is a 
single comprehensive statutory plan, but a host of unassociated 
deputies to carry it into effect, an infinite variety in the local 
application of its principles. General laws are given to the 
localities by state legislation, and these laws are generally char¬ 
acterized by a very great degree of particularity and detail of 


THE GOVERNMENT OF THE UNITED STATES. 337 

provision; but no central authority has executive charge of their 
application: each locality must see to it for itself that they are 
carried out. 

Duties of Local Government. — The duties of local gov¬ 
ernment include Police, Sanitation, the Care of the Poor, the 
Support and Administration of Schools, the Construction and 
Maintenance of Roads and Bridges, the Licensing of Trades, the 
Assessment and Collection of Taxes, besides the Administration 
of Justice in the lower grades, the maintenance of Court Houses 
and Jails, and every other affair that makes for the peace, con¬ 
venience, comfort, and local good government of the various 
and differing communities of each commonwealth. In many 
places libraries are included among the institutions given into 
the charge of the officers of local government. Local officers 
look to state laws for their authority; but practically state 
administration represents only the unifying scheme of local 
government. Local administration is the administration of the 
state. 

Local Varieties of Organization. — Almost without excep¬ 
tion the states which have been added to the original thirteen by 
which the Union was formed have derived their local institutions, 
whether by inheritance or by imitation, from the mother states 
of the Atlantic seaboard. Wherever New England settlers have 
predominated the township has taken quick rootage and had a 
strong growth ; wherever Southern men have gone the county has 
found favor above other forms of local organization; wherever 
the people from the two sections have met and mixed, as in the 
early days they met and mixed in New York, New Jersey, and 
Pennsylvania, the same combination or mixture of institutions 
that is characteristic of the middle Atlantic states is found in 
full prominence. But in all cases the new foundations in the 
West have this common feature: they have all been in a greater 
or less degree artificially contrived. Towns have not grown up 
in the Northwest for the same reasons that led to their growth 
in New England, in the days when isolation was necessary and 
when isolation involved compact and complete self-government: 
they have, on the contrary, been deliberately constructed in 
imitation of New England models. Neither have Western coun- 


338 THE GOVERNMENT OF THE UNITED STATES. 


ties been developed by processes of pioneer agricultural expan¬ 
sion like those which made the irregular, and in a sense 
geographically natural, counties of Virginia (pages 271-273); 
they have, on the contrary, been geometrically laid off in the 
exact squares of the government survey and deliberately organ¬ 
ized after the Southern fashion because the settlers wanted to 
reproduce by statute the institutions which in their old homes 
had been evolved by slow, unpremeditated growth. The institu¬ 
tions of the admitted states, in a word, were transplanted by 
enactment, whereas the institutions of the original states were 
sown by habit. It by no means follows that these newer institu¬ 
tions lack naturalness or vigor: in most cases they lack neither, 
•— a self-reliant race has simply readapted institutions common 
to its political habit; but they do lack the individuality and the 
native flavor often to be found in the institutions in whose like¬ 
ness they were made. 

The differences of institution, then, which show them¬ 
selves in the East between local government in New England, 
local government in the South, and local government in the cen¬ 
tral belt of Atlantic states extend also into the West. There, too, 
we find the three types, the township type, the county type, and 
the compound type which stands between the two; but the com¬ 
pound type is in the West naturally the most common. The West¬ 
erner has had the sagacity to try to combine the advantages of 
all the experiments tried in the older states, rejoicing in being 
fettered by no hindering traditions, and profiting by being re¬ 
strained by no embarrassing incapacity for politics. 

Keeping these facts in mind, it will be possible to con¬ 
sider without confusion, the Township, the County, the School 
District, the Town, and the City as elements of local government 
in the United States. The different place and importance given 
to each of these organs in different sections may be noted as we 
proceed. 

The Township: its Historical Origin. — The township is 
entitled to be first considered in every description of local gov¬ 
ernment in the United States not only because it is a primary 
unit of administration, but also by reason of its importance and 
because of its ancient and distinguished lineage. It is a direct 


THE GOVERNMENT OF THE UNITED STATES. 


339 


lineal descendant from the primitive communal institutions which 
Caesar and Tacitus found existing in the vigor of youth among 
the peoples living in the ancient seats of our race. The New 
England town was not an American invention; and the settlers 
upon the northern coasts did not adopt the town system simply 
because they were obliged to establish themselves in isolated 
settlements in a harsh climate and among hostile native tribes. 
We have seen (pages 268, 269) that they kept together in close 
settlements for religious purposes, for mutual defence, and for 
purposes of trade, and that their settlements were often com¬ 
pletely isolated by stretches of wild primeval forest; but their 
form of government, or at least the talent and disposition for 
it, they brought with them, an inheritance of untold antiquity. 
Their political organization was like a spontaneous reproduc¬ 
tion of the ancient Germanic mark. In most cases they re¬ 
garded the land upon which they settled as the property of 
the community, just as their remote barbarian ancestors had 
done; like those ancestors, they divided the land among families 
and individuals or worked it in common as might be decided by 
public vote in general assembly, in open ‘ folk-moot’ we may call 
it. This same ‘town-meeting,’ as they styled it, voted the com¬ 
mon discipline, elected the officers, and made the rules of common 
government. Each group of colonists constituted themselves a 
state with a governing primary assembly. They reestablished, 
too, the old principles of folk-land. Whether they tilled their 
lands in common or divided them in severalty, they had always 
a communal domain, part of which was kept as open common 
for the general pasturage, and the rest of which was given over 
in parcels, from time to time, for settlement. They were invent¬ 
ing nothing; they were simply letting their race habits and in¬ 
stincts have natural play. Their methods showed signs at almost 
every point of having been filtered through intervening English 
practices; but they rested, none the less, upon original Teutonic 
principles. 

The exceptions to the principle of folk-land occurred where, as 
in the Hartford, Windsor, and Wethersfield settlements on the Connecti¬ 
cut, the land was held, not in common by the civil community, but in 
common by a sort of corporation of joint owners under whosp supervision 


340 THE GOVERNMENT OF THE UNITED STATES. 

the new colonies were established. These joint owners were quite distinct 
from the communal authorities. 1 

Absorption of the Town in Larger Units of Govern¬ 
ment. — It was towns of this primitive pattern that were drawn 
together ultimately into the New England colonies of the later 
time, by the processes I have already described (page 269); and 
in becoming parts of larger organizations they lost to some 
extent their independence of movement, as well as in some 
slight degree their individuality also. In some cases, as for 
instance in the coalescence of ‘Connecticut’ and New Haven 
(page 278), the establishment of central state legislative control 
over the towns took the shape of a mere confirmation to them of 
their old functions and privileges, and in this way fully recog¬ 
nized their elder and once sovereign place in the historical de¬ 
velopment of the commonwealth; but it in all cases necessarily 
resulted in their virtual subordination. It led also to the creation 
of new areas of local government. Towns were grouped, at first 
for judicial purposes only, into counties, and the counties came 
in time to furnish a very convenient basis for certain adminis¬ 
trative functions once vested exclusively in the smaller areas. 
Great cities, too, presently grew up to demand more complex, 
less simply and directly democratic, methods than those of the 
towns. But no change has seriously threatened town organiza¬ 
tion with destruction. The ‘town’ is still the most character¬ 
istic and most vital element of local government in New 
England; and it still has substantially the same officers, sub¬ 
stantially the same functions, that it possessed at its foundation 
in America. 

An influx of foreigners has in many places disturbed and 
impaired the town system, and the cities, which draw to themselves so 
rapidly the rural population, hut which are too big for the primitive 
methods of town government, are powerful disintegrating elements in 
the midst of the old organization; but the new adaptation and develop¬ 
ment of the township in the West, and the tendency to introduce it 
in some parts of the South, seem still to promise it honor and length 
of days. 

1 See Andrews, The River Towns of Connecticut (Johns Hopkins Studies, 
7th Series). 


THE GOVERNMENT OF THE UNITED STATES. 341 

Town-meeting. — The sovereign authority, the motive 
power, of town government is the Town-meeting, the general 
assembly of all the qualified voters of the town, which has 
reminded so many admiring observers of the ancient Grecian 
and Eoman popular assemblies and of the Landsgemeinde of 
Switzerland. The regular session of this assembly is held once 
a year, usually in the spring, 1 but extra sessions are held from 
time to time throughout the year as occasion arises, due notice 
being given both of the time of meeting and of the exact 
business to be considered. Town-meeting elects all officers,— 
its regular annual session being the session for elections, — and 
decides every affair of local interest. 2 It is presided over by a 
‘ Moderator ’ and attended by the town officers, who must give a 
full account of their administration, and who must set before the 
Meeting a detailed statement of the sums of money needed for 
local government. These sums, if approved, are voted by the 
Meeting and their collection ordered, on a prescribed basis of 
assessment. Everything that the officials and committees of the 
town have done is subject to be criticised, everything that they 
are to do is subject to be regulated by the Meeting. 

The Town Officers. — The officers of the town are certain 
‘ Selectmen,’ from three to nine in number, according to the size and 
needs of the town, who constitute the general executive authority 
for all matters not otherwise assigned; a Town Clerk, who is the 
keeper of the town records and registers; a Treasurer; Assessors; 
whose duty it is to make valuation of all property for tax assess¬ 
ment; a Collector of the taxes voted by the Meeting or required 
by the county and state authorities; a School Committee; and a 
variety of lesser officers of minor function, such as Constables, 
together with certain committees, such as library trustees, etc. 
Generally there are also overseers of the poor and surveyors of 
highways. 

To this corps of officers all the functions of local gov¬ 
ernment belong. The county authorities cannot enter their 

1 In Connecticut in the autumn. 

2 In some of the coast towns (townships), as notably in Connecticut, the 
regulation of the use of the oyster beds is a very prominent question in 
town-meeting. 


342 THE GOVERNMENT OP THE UNITED STATES. 


domain, but must confine themselves to the judicial duties 
proper to them and to such administrative matters as the lay¬ 
ing out of inter-town roads, the issuing of certain county licenses, 
the maintenance of county buildings, etc., for the due oversight 
of which larger areas than the town seem necessary. County 
expenses are defrayed by taxes raised by the towns: the county 
authorities apportion such taxes, but do not lay them. 

In Rhode Island the only county officials are those connected 
with the administration of justice. 

The Township of the Northwest. — The town may, 
therefore, be said to exist in New England in its full historical 
character and simplicity, though much overshadowed by great 
cities, and everywhere modified and partially subordinated by 
the later developments of state and county. In the Northwest , 
whither New England emigrants have gone, it has entered an¬ 
other phase and taken on another character, — a character which 
may perhaps foreshadow its ultimate organization, should the 
country have at any future time the uniform practices of local 
government now dimly promised by certain incipient forces of 
institutional interchange and imitation. 

In the first place, the Northwestern township is more 
thoroughly integrated with the county than is the New England 
township. County and township fit together as pieces of the 
same organism. In New England the township is older than the 
county, and the county is a grouping of townships for certain 
purposes; in the Northwest, on the contrary, the county has in 
all cases preceded the township, and townships are divisions of 
the county. 

The county preceded the township because the county 
furnishes, for our people, the natural basis of organization for a 
scattered agricultural population ; the township came afterwards, 
in obedience to the habit of the New England settlers, as the 
natural organization for a population which had become more 
numerous and which had drawn together into closer association. 

Its Origin. —It was school organization that supplied the 
beginnings of the township system in all the more newly settled 
portions of the country. The Western township has sprung out 


THE GOVERNMENT OF THE UNITED STATES. 343 


of the school as the New England township of the earliest days 
sprang out of the church. The government surveyor, who has 
everywhere preceded final settlement in the West, has in all cases 
mapped out the land in regular plots of thirty-six square miles 
each, which, for convenience, he called ‘ townships’; and in every 
township Congress has reserved at least a square mile of land 
(one ‘ section’) for the endowment of schools. This endowment 
had to be administered by the settlers; school organization had 
to be effected; the name township had already been given to 
the district so endowed; and there was, therefore, naturally 
school organization on the basis of the township. From this 
there eventually issued an equally natural growth of local politic 
cal institutions. 1 

Spread of Township Organization. —In the newer por¬ 
tions of the country the development of the township has pro¬ 
gressed almost in direct ratio with the development of local 
government: in many sections, even where population is com¬ 
paratively dense, county organization has been made to suffice 
for such districts as have not assumed the structure and privi¬ 
leges of village or city incorporation; but wherever any special 
effort has been made to perfect local rural organization for ad¬ 
ministrative purposes, the township has been accepted as the best 
model of political association. 

It has received its widest acceptance in such middle states as 
New York and Pennsylvania, and in the great Northwestern states of 
Michigan, Wisconsin, Illinois, and Minnesota. Elsewhere, in the middle 
West, in Ohio, Indiana, and Kansas, for example, and in such states of 
the far West as California, it is less fully developed, and occupies a much 
more subordinate place as compared with the county. The county, 
indeed, may be said to be the prevalent unit of local government in Cali¬ 
fornia, as well as in Colorado, Oregon, Nebraska, and Nevada. 

Township Organization. — The organization of the town¬ 
ship outside of New England varies with its development. 
Where it is most vigorous there is the town-meeting, exercis¬ 
ing powers strictly defined and circumscribed by statute and 
somewhat less extensive than the powers of the town-meeting in 

1 See p. 10 of Local Government in Illinois , by Dr. Albert Shaw (Johns 
Hopkins Studies in Historical and Political Science, First Series). 


344 THE GOVERNMENT OF THE UNITED STATES. 


New England, but still covering a multitude of local interests 
and representing a very real control. Where it is less developed 
there is no town-meeting, but instead only the processes of popu¬ 
lar election to local office. In all cases the 1 selectmen ’ have dis¬ 
appeared : at least we find no officers bearing their name, and no 
officers possessing exactly their functions. Where the township 
is most completely organized we find one or more 4 supervisors ’ 
standing at the front of township administration, who are clothed 
with the duties of overseers of the poor, exercise oftentimes a 
certain control over the finances of the township, and are in 
general function the presiding and directing authorities of the 
administration. 

Where there are several supervisors or trustees in the town¬ 
ship, it is common to associate them together as a Board, and 
under such an arrangement they very closely resemble the New 
England board of selectmen in their administrative functions. 
Township boards also exist under the laws of some states in 
which there is but a single supervisor for each township, being 
composed, usually, besides the supervisor, of such officers as the 
town clerk and the Justices of the Peace. In Michigan such a 
board has rather extensive supervisory powers ; in Illinois it is 
a committee of audit simply. 

The number of township officers varies with the degree of 
development to which the township system has attained. In 
Ohio, where the system is still more or less in germ, there are, 
besides the three trustees, no township officers save a clerk and a 
treasurer. 

In Michigan, even, where the township system is fully ac¬ 
cepted, there is neither an assessor nor a collector of taxes, the 
supervisor acting as assessor and the treasurer as collector. In 
Illinois, on the other hand, there is always a full corps of officers: 
supervisor, collector, assessor, clerk, commissioners of highways, 
justices of the peace, constables, etc.,—and for the school town¬ 
ship a body of school trustees. 

The term of all officers except justices of the peace, road and 
school commissioners, and constables is generally but a single 
year, as in New England; the terms of the other officers named 


THE GOVERNMENT OE THE UNITED STATES. 345 


are often three or four years. Where there is a town-meeting the 
officers are elected by it; where there is no town-meeting they 
are chosen at the polls. 

The Township in the Middle Atlantic States. — It is re¬ 
versing the historical order to speak of the townships of the 

middle Atlantic states after discussing the townships of the 

newer West; but it is not reversing the order of convenient expo¬ 
sition. The processes of formation are plainly visible in the 

West; in the East they are more complex and obscure, being the 

formations of history rather than of legislation. 

The New York township is like the townships of Michi¬ 
gan and Illinois in its structure and functions; but like because 
it is an original, not because it is a copy. Over it presides a 
single supervisor who is the treasurer and general financial officer 
of the area. It has its clerk, its assessor, its collector, its commis¬ 
sioners of highways, its constables, its justices of the peace. It 
has also special overseers of the poor. An annual town-meeting, 
under the presidency of the justices of the peace, or of the town 
clerk, elects all officers, passes sundry by-laws, votes taxes for 
schools and poor relief, and constitutes the general governing 
authority. 

In counties containing 300,000 or more inhabitants there is a provision 
for the election of township officers at the polls. 

The Pennsylvania Township. — The New York township 
system suggested the system of the states about the lakes, and 
stands nearest in the order of development to the township 
of New England. The township of Pennsylvania, on the other 
hand, suggests the township system of the next lower belt of 
middle Western states. In it there is no town-meeting, but 
only an executive machinery. A board of two or three super¬ 
visors, holding for a term of three years, presides over the town¬ 
ship, and has as its most prominent function the care of high¬ 
ways. For the rest, there are the usual officers, with the some¬ 
what uncommon addition of the auditors. Where the township 
is charged with the care of the poor, two special overseers are 
elected. 


346 THE GOVERNMENT OF THE UNITED STATES. 

Origins of Local Government in the Middle States.— 

Local government in New York, Pennsylvania, Delaware, and 
most of New Jersey runs back, as to a common source, to the 
system established in colonial times by the Duke of York as 
proprietor. Under that system the township was the principal 
organ of local government. Its officers were certain constables 
and overseers; and above the township was only an artificial 
* Riding,’ presided over by a sheriff. Certain General Courts 
levied highway and poor rates, appointed overseers of highways, 
etc. After the period of the Duke’s proprietorship, the develop¬ 
ment of local government in the several parts of his domain 
exhibited a considerable variety. The township retained its im¬ 
portance in New York, but further south, particularly in Penn¬ 
sylvania, the county gained the superior place. 

The Township in the South. —Wherever, in the South, the 
principle of local taxation for local schools has been fully rec¬ 
ognized, there the township has begun to show itself, at least in 
bud. Virginia, the oldest of the southern states, and in most 
respects the type of all the rest in institutional development, for 
six years (1868-1874) tried the township system in its full form. 
But the experiment proved unsatisfactory. The system, instead 
of being gradually introduced and allowed to take a normal way of 
growth, was adopted whole, proved too artificial, and was very 
soon abolished by constitutional amendment. North Carolina 
and West Virginia have adopted a township system of a very 
much more rudimentary sort, and with better results in practical 
administration. 

The County. — The division of power between township 
and county can be most intelligibly discussed in connection with 
the following outline of county organization. The natural history 
of the county is best studied in the South, where, despite the par¬ 
tial adoption of township organization here and there, the county 
remains the chief and almost the only organ of local order and 
government. We have seen (pages 271-273) how natural a basis 
of government it was for a widespread agricultural population. 
The county was imported into the West by Southern settlers, and 
also found there at first its natural reason for existence in a simi¬ 
larly diffused population. New England immigration and new 


THE GOVERNMENT OF THE UNITED STATES. 347 


conditions of industrial and social combination have created the 
township within the county in the West, as similarly altered con¬ 
ditions have begun to create it in the South also. 

In all cases, it would seem, the county was originated 
primarily for judicial purposes, as an area in and for which courts 
were to be held, though in such confederate colonies as Connecticut 
it was also in part the outgrowth of the union of different groups 
of once independent towns. In the South the county became also 
the single area for the administrative organization of local govern¬ 
ment, being given the functions elsewhere divided between the 
county and smaller areas like the township. In New England 
certain general functions of a limited character have been con¬ 
ferred upon it by subtraction from the townships. In the North¬ 
west, county and township have been created almost simultaneously 
and side by side, and are carefully integrated. 

The American county was of course in the first instance a frontier 
copy of the English shire ; but its growth affords no analogy to the growth 
of its English prototype. The English shire in a great many instances 
traces its history back to the time when it was a separate Saxon kingdom, 
and may be said to have as natural boundaries as France; American 
counties, on the other hand, have all been deliberately ‘laid out,’ as judi¬ 
cial and administrative subdivisions, and have no such independent his¬ 
torical standing. 

The Southern county, which undertakes all of local ad¬ 
ministration, has a complete set of officers. At its head is a 
small board of county commissioners. Acting under the gen¬ 
eral superintendence of the commissioners, there are generally 
a county treasurer, auditor, superintendent of roads, superin¬ 
tendent of education, and superintendent of the poor. On its 
judicial side, the county has its sheriff, its clerk, its ordinary 
or surrogate, its coroner, and its state-attorney, the latter 
generally acting for a judicial district inclusive of several 
counties. The functions of the county embrace the oversight of 
education, the maintenance of jails and poorhouses, the construc¬ 
tion and repair of highways, and all local matters. County 
officers are in almost all instances elected by popular vote. Un¬ 
der the Southern county system the sheriff is commonly also 
tax-collector. 


848 THE GOVERNMENT OF THE UNITED STATES. 

Where the township exists there is great variety of 
county organization, almost the only point of common likeness 
being the organization of justice. The county always has its 
sheriff, and generally its separate courts, with the usual coroner 
and clerk. The variety shows itself in the field of administra¬ 
tive structure. Sometimes, as in New York, Michigan, and Illi¬ 
nois, the county administrative authority is a board composed of 
the supervisors of all the townships; sometimes, as in Pennsyl¬ 
vania and Minnesota, the county authority is a board of three 
commissioners. In Wisconsin the county board consists of mem¬ 
bers each of whom is chosen by two or more townships. Where 
the county is given least power, as in New England, its adminis¬ 
trative functions hardly extend beyond the maintenance of county 
buildings such as the jail and courthouse, the granting of certain 
licenses, and the partial supervision of the highway system. In 
New York and the Northwest the county authorities often under 
take the relief of the poor, sometimes exercise an extensive con¬ 
trol over the debt-contracting privileges of the smaller areas, often 
audit the accounts of local officers, and supervise taxation for pur- 
poses of equalization. 

Where townships exist, then, the division of functions may be 
said to be as follows: the township is the area for the administration of 
schools, for the relief of the poor (unless by special popular vote this func¬ 
tion be given to the county), police, the construction and maintenance of 
highways, and sanitation ; while the county is the area for the administra¬ 
tion of justice, for the maintenance of jails, courthouses, and sometimes 
poorhouses, for tax equalization, and often for the exercise of certain 
other general supervisory powers. 

Villages, Boroughs, Cities. — Counties and townships are 
areas of rural organization only. With the compacting of popu¬ 
lation in great towns and cities other and more elaborate means 
of organization became necessary, and a great body of consti¬ 
tutional and statutory law has grown up in the states concern¬ 
ing the incorporation of urban areas. There is no complete and 
general municipal corporations act in any of our states such as 
that under which, in England, cities of all sizes may acquire the 
privileges and adopt the organization of full borough government 
(page 240): the largest towns are left to depend for their incor« 


THE GOVERNMENT OF THE UNITED STATES. 349 


poration upon special acts of legislation. The large cities of the 
country consequently exhibit a great variety of political structure, 
and even cities in the same state often differ widely in many 
material points of organization and function. 

The electors or freeholders of less populous urban dis¬ 
tricts are in most of the states empowered to obtain a simple sort 
of urban organization and considerable urban powers, by certain 
uniform routine processes, from the courts of law; villages (as 
they are called in New York), boroughs (as they are styled in 
Pennsylvania), towns (as they are sometimes designated in the 
South), 1 cities of the lesser grades (in states where towns are classi¬ 
fied according to population), may usually get from the courts as 
of course, upon proof of the necessary population and of the con¬ 
sent of the freeholders or electors, the privilege of erecting them¬ 
selves into municipal corporations under general acts passed for 
the purpose; very much as private joint-stock companies may get 
leave to incorporate upon showing to the court evidence of the 
possession of the necessary membership, stock, or paid-up capital. 

The town or borough is, however, a public, not a private, corpo¬ 
ration, receiving by delegation certain powers of government; and many 
states have left with their legislatures the power to create all public cor¬ 
porations by special act. The incorporation of towns is not, therefore, 
universally governed by general statute. 

The Authorities of urban districts thus erected into 
separate corporations succeed, generally, to all the powers of 
township officers within their area and constitute a local body 
apart; but usually the area thus incorporated does not cease to 
be a part of the county in which it lies. It continues to pay 
county taxes and its electors continue to take their part in the 
choice of county officials. In some cases, however, cities have 
been definitely separated from the counties in which they lie. 
This has been the virtually uniform policy of Virginia. In other 
cases cities have by growth absorbed the counties in which they 
were situated, as has happened, for example, by the expansion of 
New York, Philadelphia, New Orleans, and San Francisco. Balti¬ 
more and St. Louis have been made independent of county gov- 

1 The name town when used in New England always means, not an urban 
district, but a towns/ujp. 


350 THE GOVERNMENT OF THE UNITED STATES. 

ernment and county obligations by special legal arrangement 
The organization of incorporated towns is unlike that of either 
county or township principally in this, that they have at the front 
of their government a representative council which within its 
sphere is a law-making authority. 

A common model of organization for the smaller urban areas 
is: a mayor, president, or chief burgess ; a small town council given ex¬ 
tensive power of making by-laws, considerable power of taxation for local 
improvements as well as for local administration, and other powers of 
local direction which quite sharply differentiate it from the merely execu¬ 
tive boards often found in the townships and always found in the coun¬ 
ties ; a treasurer; a clerk; a collector; a street commissioner; sometimes 
overseers of the poor; and generally such other minor officers as the 
council sees fit to appoint. 

Organization of Government in Cities. — The difference 
between the organization of these smaller urban areas and the 
organization of great cities is a difference of complexity not only 
but often also a difference of kind. Cities, we have seen (page 
324), are often given a separate judicial organization, being 
made in effect separate judicial circuits or counties, with their 
own courts, sheriffs, coroners, and state-attorneys ; and are some¬ 
times also made quite independent of the counties in which 
they lie (page 349). They are given also larger councils, with 
larger powers; a larger corps of officers; and greater energy of 
self-direction than other local areas possess. 

The Council of a great city usually consists of two sections or 
‘houses,’ — a board of aldermen and a board of common councilmen , dif¬ 
fering very much as the two houses of a state legislature differ, in the 
number and size of the districts which their members represent. In most 
of the cities of New York state, however, there is but a single legislative 
chamber, called sometimes the Board of Aldermen, sometimes the Com¬ 
mon Council. 

These boards always constitute the law-making (or rather ordi¬ 
nance-making) and taxing power of the city; and always until recent 
years they have been constituted overseers of administration also, by 
being given the power to control it not only by withholding moneys, but 
also through direct participation in the power of appointment to the minor 
city offices, — all those, that is to say, not filled by popular election. The 
chief officers of every city have usually been elected, but all others have, 
as a rule, been appointed by the mayor subject to confirmation by thq 


THE GOVERNMENT OP THE UNITED STATES. 351 


city council. The tendency of all very recent legislation with reference 
to the constitution of city governments has been to concentrate executive 
power, and consequently executive responsibility, in the hands of the 
mayor, leaving to the council only its ordinance-making power and its 
function of financial control. Some of the most recent charters have even 
extended the appointing power of the mayor so as to include the most 
important executive offices of the city administration. Local bills are 
submitted to the mayors of the cities which they affect, for their approval. 
But, if they do not approve, the repassage of the act by a mere majority 
in the legislature suffices to make it law, notwithstanding. 

Commission Form of Government. — The most recent develop¬ 
ment in municipal government is the commission form, where the 
old' form of organization, consisting of a mayor and an elected 
council, has been replaced by a single elective commission, small 
in number, which combines in itself both executive and legis¬ 
lative functions. The commission form has been widely adopted 
in smaller towns and cities, in a few cities of size, but not in 
any of the very largest cities. Its merit lies in the concentra¬ 
tion of powers in the hands of a few men whom it is easier to 
hold responsible than was formerly the case when authority was 
divided and parceled out among many. In some cities the -plan 
has been introduced of selecting a city manager, who under the 
control of the commission, by whom he is appointed and removed, 
is the actual administrative head of the city government. 

School Administration. — Wherever the public school 
exists there we find the school district the usual administra¬ 
tive area for educational purposes. Where the county system 
prevails the county is divided into school districts; where the 
township system prevails the township is divided into school 
districts. In every case there are district directors or trustees 
who control school administration, and usually control it so 
entirely as to prevent in great part the existence of any 
uniform system of education for the whole state; but where 
the township system prevails there is generally more partici¬ 
pation on the part of the people, gathered in district-meeting, 
in school administration, and generally a fuller power of local 
taxation. 

In New England recent years have been witnessing the disap¬ 
pearance of the separate school district in some states, and its 


352 THE GOVERNMENT OF THE UNITED STATES. 


absorption by the township. Thus in Maine, in New Hampshire, 
and in Connecticut school administration is being transferred 
from district to township officers, and the township is being 
made the school area. In Massachusetts the school district 
system was entirely abolished in 1882, and township school 
administration substituted. And outside New England the same 
substitution has here and there been made, — as, for example, 
in Pennsylvania. 

In the Northwest schools usually receive support from 
three distinct sources: from the land granted to each town¬ 
ship by the federal government; from a general state tax 
for education, whose proceeds are distributed among the town¬ 
ships, to be further distributed by the township authorities 
among the districts; and from district taxes levied by the 
district directors. In New England there is generally state 
and township taxation for the support of the schools. In the 
South, under the county system, there is state taxation only, 
for the most part, save in certain exceptional localities, and 
in the greater towns. In many cases in the Northwest the 
school district is coincident in area with the civil township, 
though distinct and separate in organization. 

Nowhere is there sufficient centralization of control. State 
superintendents or other central educational authorities are 
without real administrative powers (compare page 335); county 
superintendents seldom have much authority; township trus¬ 
tees or committees, as a rule, have little more than a gen¬ 
eral supervision and power of advice; usually the directors 
of the smallest area have the greater part of the total of 
administrative authority, applying their quota of even the state 
taxes according to their own discretion. The result is, variety 
in the qualifications of teachers, variety in the method of 
their choice, variety in courses of study, variety in general 
efficiency. 

Taxation. — The most striking feature regarding local 
taxation in the United States is the strict limitations put upon 
it by constitution or statute. Commonly no local authorities 
can tax beyond a certain fixed percentage of the appraised 
value of the property of their district. Under the county 


THE GOVERNMENT OF THE UNITED STATES. 353 


system, requisition is made upon the officers of the counties 
for the taxes voted by the legislature for state purposes, and 
the county boards raise them, together with the county taxes, 
upon the basis of the county assessment. Where the township 
exists, the process goes one step further: requistion is made 
upon the townships for both the state and county taxes, and 
the townships raise these, together with their own taxes, upon 
the basis of the assessment made by their own assessors. 

An effort is made in most of the states, however, to equal¬ 
ize assessments. Some county authority acts as a board of 
equalization with reference to the assessments returned by the 
assessors of the several townships, and above the equaliza¬ 
tion boards of the counties there is generally a state board of 
equalization, whose duty it is to harmonize and equalize, upon 
appeal, taxation in the several counties. Appeals always lie 
from the local assessors to these boards of equalization. The 
system is, however, only partially successful. It has proved 
practically impossible, under the present system of localized 
authority, to avoid great varieties and inequalities of assessment: 
local officials try to cut down the shares of their districts in 
the general taxes as much as possible. 

General Remarks on Local Government. — Several features 
observable in our systems of local government taken as a whole 
are worthy of remark. (1) In the first place, outside of the 
towns and cities, the separately incorporated urban districts, 
there is a marked absence of representative, law-making bodies. 
Almost everywhere local officers and boards have merely execu¬ 
tive powers and move within narrow limits set by elaborate 
statute law. 

(2) In the second place, where there are local law-making 
bodies, they act under strict constitutional law: under charters, 
that is, possessing thus a strong resemblance, of kind, to state 
legislatures themselves. 

(3) In the third place, central control of local authorities exists 
only in the enforcement, in the regular law courts, of charters and 
general laws: there is nowhere any central Local Government 
Board with discretionary powers of restriction or permission 
(page 246). 


354 THE GOVERNMENT OF THE UNITED STATES. 


(4) In the fourth place, relatively to the central organs of the 
state, local government is, administratively, the most vital part 
of our system: as compared either with the federal government 
or with local authorities, the central governments of the states 
lack vitality not only, hut do not seem to he holding their own in 
point of importance. They count for much in legislation, but, so 
far, for very little in administration. 


The Federal Government. 

The Constitution of the United States does not con bain 
all the rules upon which the organization of the federal govern¬ 
ment rests. It says that there shall be a Congress which shall 
exercise the law-making power granted to the general govern¬ 
ment ; a President who shall he charged with the execution of 
the laws passed by Congress; and a Supreme Court which shall 
he the highest court of the land for the determination of what is 
lawful to he done, either by individuals, by the state governments, 
or by the federal authorities, under the Constitution and laws. 
It prescribes also in part the organization of Congress. But it 
does not command how Congress shall do its work of legislation, 
how the President shall be enabled to perform his great function, 
or by what machinery of officers and subordinate courts the Su¬ 
preme Court shall be assisted in the exercise of its powers. It 
leaves all detail of operation to be arranged by statute: and 
statute accordingly plays an all-important part in the organiza¬ 
tion of the government. 

The Constitution furnishes only the great foundations of the 
system. Those foundations rest upon the same firm ground of 
popular assent that supports the several constitutions of the 
states. Framed by a federal convention and adopted by repre¬ 
sentative conventions in the states, it stands altogether apart 
from ordinary law both in character and sanction. 

Amendment of the Constitution. — The Constitution can¬ 
not be amended without the consent of two-thirds of Congress 
and three-fourths of the states. Amendments may be proposed 
in one of two ways : either (a) two-thirds of the members of each 
house of Congress may agree that certain amendments are neces- 


THE GOVERNMENT OF THE UNITED STATES. 355 


sary; or ( b ) the legislatures of two-thirds of the states may 
petition Congress to have a general convention called for the con¬ 
sideration of amendments, and such a convention, being called, 
may propose changes. In both cases the mode of adoption is the 
same. Every change proposed must be submitted to the states, 
to be voted upon either by their legislatures or by state conven¬ 
tions called for the purpose, as Congress may determine. Any 
amendment which is agreed to by three-fourths of the states 
becomes a part of the Constitution. 

The seventeen amendments so far made to the Constitution 
were all proposed by Congress. No general constitutional con¬ 
vention has been called since the adjournment of the great body 
by which the Constitution was framed in 1787. 

None of the written constitutions of Europe is so difficult of 
alteration as our own. In Germany a provision changing the 
imperial constitution passes just as an ordinary law would pass, 
the only limitation upon its passage being that fourteen nega¬ 
tive votes in the Bundesrat will defeat it (14 out of 58). In 
France (pages 154, 155) constitutional amendments pass as ordi¬ 
nary laws do, except that they must be adopted by the two 
houses of the legislature acting, not separately in Paris, but 
jointly at Versailles, as a National Assembly. In Switzerland 
such amendments must pass both houses of the federal legis¬ 
lature and must also be approved, in a popular vote, by a major¬ 
ity of the voters, and by a majority of the Cantons. In England 
the distinction between constitutional law and statute law can 
hardly be said to exist. 

The Federal Territory. — The territory of the United 
States is of three different sorts : there is (a) the District of Co¬ 
lumbia, over which the nation exercises exclusive jurisdiction as 
the seat of its government, and the arsenals and dock-yards, 
which it has acquired by purchase, and over which the states 
have given it jurisdiction for military purposes ; and ( b ) the 
great national property, the territories, which the federal author¬ 
ities hold in trust for the nation as a seed-bed for the develop¬ 
ment of new states, and (c) the dependencies. 

The District of Columbia. — It would have been incon¬ 
venient for the federal government to have no territory of its 


856 THE GOVERNMENT OF THE UNITED STATES. 

own on which to build its public offices and legislative halls, and 
where it could be independent of local or other state regulations. 
The Constitution itself therefore provided that Congress should 
have exclusive authority within any district not more than ten 
miles square which any state might grant to the federal govern¬ 
ment for its own uses. Acting upon this hint, Maryland and 
Virginia promptly granted the necessary territorial jurisdiction, 
it having been decided to establish the seat of government upon 
the Potomac. A part of the home-land of the federal govern¬ 
ment, thus ceded, was laid out under the name of the District of 
Columbia : there the public* buildings were erected, and there, 
after the removal of the government offices thither in 1800, the 
city of Washington grew up. 

The first Congress of the United States met in New York City ; there 
the first President was inaugurated, and the organization of the new 
government effected. In 1790 it was determined that the federal offi¬ 
cers should live and Congress meet in Philadelphia (as the Continental 
Congress had generally done) for ten years ; after that, in the district 
specially set apart for the use of the federal government. 

The creation of this federal home-plot is a feature peculiar to our 
own federal arrangements. Berlin is the capital of Prussia, not the 
exclusive seat, or in any sense the property, of the imperial govern¬ 
ment. Berne, too, is cantonal, not federal, ground. Our government 
would have been in the same case as those of Germany and Switzer¬ 
land had our federal authorities remained the guests of New York or 
Pennsylvania. 

The several arsenals , dock-yards , forts , and light-houses established 
by the federal government in different parts of the Union are built upon 
land purchased by the federal government, generally of individuals. It 
is the practice for the several states in which such pieces of property lie 
to grant to the federal government exclusive jurisdiction over them,— 
usually with the proviso that the jurisdiction shall lapse when the prop¬ 
erty ceases to be used for the federal purposes specified. 

The Territories. — As the different parts of our vast 
national domain have been settled it has been divided, under the 
direction of Congress, into portions of various sizes, generally 
about the area of the larger states, though sometimes larger than 
any state save Texas. These portions have been called, for want 
of a better name, Territories , and have been given governments 


THE GOVERNMENT OF THE UNITED STATES. 357 


constituted by federal statute. First they have been given gov¬ 
ernors and judges appointed by the President; then, as their 
population has become numerous and sufficiently settled in its 
ways of living, they have been given legislatures chosen by their 
own people and clothed withf the power to make laws subject to 
the approval of Congress; finally, upon becoming still more de¬ 
veloped, they have been granted as full law-making powers as 
the states. The territorial stage of their development passed, 
they have one by one been brought into the Union as states. 
The only territories remaining are Alaska and Hawaii. 

Until 1803 the only territory of the United States consisted of the 
lands east of the Mississippi which had belonged to the thirteen original 
states individually, and had by them been granted to the general govern¬ 
ment. In 1803 the vast tract known as Louisiana was bought; in 1848, 
by conquest, and in 1852, by negotiation, the Pacific coast lands were 
acquired from Mexico ; in 1846 the right of the United States to a portion 
of the Oregon country was finally established, by treaty. 

The Dependencies. — With the acquisition of Porto Pico 
and the Philippines as a result of the war with Spain, the United 
States acquired non-contiguous lands, already inhabited by 
peoples differing from ourselves in language, customs and insti¬ 
tutions. Unlike the territory previously acquired, — with the 
exception of Alaska and Hawaii, — the insular possessions are 
not adapted for the progressive development from territories 
to states. They are dependencies, and will remain as such until 
they reach the stage when they may become independent or 
self-governing. 

The post-offices, federal court chambers, custom-houses, and other 
like buildings erected and owned by the general government in various 
parts of the country, are held by the government upon the ordinary 
principles of ownership, just as they might be held by a private corpora¬ 
tion. Their sites are not separate federal territory. 

Congress. — As in the states, so in the federal govern¬ 
ment, the law-making power is vested in a double legislature, a 
Congress consisting of a Senate and a House of Representatives. 
Unlike the two houses of a state legislature, however, the two 


358 THE GOVERNMENT OF THE UNITED STATES. 

houses of Congress have distinct characters: the Senate differs 
from the House not only in the number of its members, but also 
in the principle of its composition. It represents the federal 
principle upon which the government rests, for its members rep¬ 
resent the states. The House of Representatives, on the other 
hand, represents the national principle, upon which also the gov¬ 
ernment has now been finally established, without threat of 
change. Its members represent the people. 

The Senate. — The Senate consists of two representatives 
from each of the states of the Union. It has, therefore, the states 
being forty-eight in number, ninety-six members. Each senator 
is elected, for a term of six years, by the people of the state 
which he represents; and a state is legally free to choose 
any one as senator who has been a citizen of the United States 
nine years, who has reached the age of thirty, and who is at the 
time of the election a resident of the state which he is chosen 
to represent. 

The Constitution directed that, immediately after coming to¬ 
gether for its first session, the Senate should divide its members, 
by lot, as nearly as it could into three equal groups; that the 
members assigned to one of these groups should vacate their seats 
after the expiration of two years, the members assigned to an¬ 
other after the expiration of four years, and the members of the 
third after the expiration of six years; after which arrangement 
had been accomplished, the term of every senator was to be six 
years as provided. It was thus brought about that one-third of 
the membership of the Senate is renewed by election every two 
years. The result is, that the Senate has a sort of continuous 
life, — no one election year affects the seats of more than one- 
third of its members. 

The Senate is the federal house of Congress. Its mem¬ 
bers represent the states as the constituent members of the 
Union. They are not, however, in any sense delegates of the 
governments of the states. They are not subject to be instructed 
as to their votes, as members of the German Bundesrat are, by 
any state authority. Each senator is entitled and expected to 
vote according to his own individual opinion. Senators, there¬ 
fore, may be said to represent, not the governments of the states, 


THE GOVERNMENT OF THE UNITED STATES. 359 


but the people of the states organized as corporate bodies 
politic. 

There is no rule which obliges senators from the same state to 
vote together after the fashion once imperative in the Congress 
of our own Confederation, and still imperative in the German 
Bundesrat (p. 288). Each senator represents his state, not in 
partnership, but singly. 

The equal representation of the states in the Senate more strictly con¬ 
forms to the federal principle than does the unequal representation char¬ 
acteristic of the German Bundesrat ; but the rule observed in Germany, 
that the representatives of each state must vote together, must, in turn, be 
admitted to be more strictly consistent with the idea of state representation 
than is the rule of individual voting followed in our Senate. 

The Vice-President of the United States is president of 
the Senate. Unless the President die, this is the only function 
of the Vice-President. He is not a member of the Senate; he 
simply presides over its sessions. He has a vote only when the 
votes of the senators are equally divided upon some question and 
his vote becomes necessary for a decision. If the President die 
or resign, or be removed from office, or be rendered unable “ to 
discharge the duties and powers ” of his office, the presidency 
devolves on the Vice-President. 

Organization of the Senate. — The Senate makes its 
own rules of procedure, the Vice-President being of course bound 
to administer whatever rule it adopts. Naturally the internal 
organization of the body is the matter with which its rules prin¬ 
cipally concern themselves, and the most important feature of 
that organization is the division of the members of the Senate 
into standing committees; into small groups, that is, to each of 
which is entrusted the preparation of a certain part of the Sen¬ 
ate’s business. The Senate itself would not have time to look 
into the antecedents and particulars, the merits and bearings, 
of every matter brought before it; these committees are, there¬ 
fore, constituted to act in its stead in the preliminary exami¬ 
nation and shaping of the measures to be voted on. Whenever 
any proposal is made concerning any important question, that 
proposal is referred to the standing committee which has been 


360 THE GOVERNMENT OF THE UNITED STATES. 


commissioned to consider questions of the class to which the 
proposed action belongs. The committee takes the proposal 
under consideration, in connection with all other pending pro¬ 
posals relating to the same subject, and reports to the Senate 
what it thinks ought to be done with reference to it, — whether 
it is advisable to take any action or not, and, if it is advisable to 
act, what action had best be taken. 

Thus there is a Committee on Finance, to which all questions 
affecting the revenue are referred; a Committee on Appropriations, which 
advises the Senate concerning all votes for the spending of moneys; a 
Committee on Railroads, which considers all railroad questions; a Com¬ 
mittee on Foreign Affairs, which prepares for consideration all questions 
touching our relations with foreign governments, etc. 

Influence of the Standing Committees. — Its standing 
committees have a very great influence upon the action of the 
Senate. The Senate is naturally always inclined to listen to 
their advice, for each committee necessarily knows much more 
about the subjects assigned to it for consideration than the rest 
of the senators can know. Its committee organization may be 
said to be of the essence of the legislative action of the Senate: 
for the leadership to which a legislative body consigns itself is 
of the essence of its method and must affect, not the outward 
form merely, but the whole character also of its action. Under 
every great system of government except our own, leadership 
in legislation belongs for the most part to the ministers, to the 
Executive, which stands nearest to the business of governing; 
it is a central, and, as evidenced by its results, extremely impor 
tant characteristic of our system that our legislatures lead them¬ 
selves, or, rather, that they suffer themselves to be led along the 
several lines of legislation by separate and disconnected groups 
of their members. 

The Senate and the Executive. — One of the chief uses of the 
committees is to obtain information for the Senate concerning the affairs 
of the government. But, inasmuch as the executive branch of the gov¬ 
ernment is quite separate from Congress, it is often very difficult for the 
Senate to find out through its committees all that it wishes to know about 
the condition of affairs in the executive departments. The action of the 
two houses upon some questions must of course be greatly influenced, and 


THE GOVERNMENT OF THE UNITED STATES. 361 

should be greatly influenced, by what they can learn of administrative 
experience in the departments, and the Senate, as well as the House, has 
the right to ask what questions it pleases of executive officers, either 
through its committees or by requiring a written report to be made directly 
to itself by some head of a department. Upon financial questions, for exam¬ 
ple, the Senate or its Finance Committee must constantly wish to know 
the experience of the Treasury. But it is not always easy to get legisla¬ 
tive questions fully and correctly answered ; for the officers of the govern¬ 
ment are in no way responsible to either house for their official conduct. 
They belong to an entirely separate and independent branch of the gov¬ 
ernment : only such high crimes and misdemeanors as lay them open to 
impeachment expose them to the power of the houses. The committees 
are, therefore, frequently prevented from doing their work of inquiry 
well, and the Senate has to act in the dark. Under other systems of gov¬ 
ernment, the ministers are always present in the legislative bodies to be 
questioned and dealt with, directly, face to face. 

The President Pro Tempore. — It is the practice of the Senate 
to make itself independent of all chances of the Vice-President’s absence 
by electing statedly from its own membership a president pro tempore, to 
act in case of the absence or disability of the Vice-President. 

The House of Representatives.—The House of Repre¬ 
sentatives represents, not the states, but the people of the 
United States. It represents them, however, not in the mass, 
but by states. Representation is apportioned among the states 
severally according to population, and no electoral district crosses 
any state boundary. 

Apportionment of Representatives. — Congress itself de¬ 
cides by law how many representatives there shall be; it then 
divides the number decided upon among the states according to 
population; after which each state is divided by its own legis¬ 
lature into as many districts as it is to have representatives, 
and the people of each of these districts are entitled to elect one 
member to the House. The only limitation put by the Consti¬ 
tution itself upon the number of representatives is, that there 
shall never be more than one for every thirty thousand inhabi¬ 
tants. The first House of Representatives had, by direction of 
the Constitution itself, sixty-five members, upon the proportion 
of one to every thirty-three thousand inhabitants. The number 
has, of course, grown, and the proportion decreased, with the 


362 THE government of the united states. 


growth of population. A census is taken every ten years, and 
the rule is to effect readjustments and a redistribution of repre¬ 
sentation after every census. 

In states which send but one representative (there are 
now —1918 — five of these), the representative is chosen by the 
voters of the whole state. In some of the other states also it 
sometimes happens that one or more representatives are chosen 
thus *at large/ pending a redistribution among districts, — or for 
some other reason. 

At present there are four hundred and thirty-five members in the 
House, and the states are given one member for every 211,877 of their 
inhabitants. In cases where a state has many thousands more than an 
even number of times that many inhabitants, it is given an additional 
member to represent the balance. Thus, if it have four times 211,877 
inhabitants and a very large fraction over, it is given five members instead 
of four only. If any state have less than 211,877, it is given one member, 
notwithstanding, being entitled to at least one by constitutional provision. 
The reason for allowing a state an extra representative when there is a 
large fraction remaining over after a division of its population by the 
standard number is that the apportionment of representatives is made 
according to states, and not by an even allotment among the people of 
the country taken as a whole, and that under such a system a perfectly 
equal division of representation is practically impossible. Congress makes 
the most equitable arrangement practicable each time it reapportions the 
membership of the House upon the basis of the decennial census which 
Congress directs to be taken for this purpose in pursuance of a special 
constitutional command. 

Elections to the House. — Any one may be chosen a 
representative who has reached the age of twenty-five years, 
has been a citizen of the United States for seven years, and 
is at the time of his election an inhabitant of the state from 
which he is chosen. The term of a representative is two years : 
and two years is also the term of the whole House; for its 
members are not chosen a section at a time, as the senators are; 
the whole membership of the House is renewed every second 
year. Each biennial election creates ‘ a new House/ 

Although the Senate has a continuous life, we speak habitually 
of different ‘ Congresses,’ as if a new Congress , instead of a new House 
of Representatives merely, werfe chosen biennially. Thus the Congress oi 


THE GOVERNMENT OF THE UNITED STATES. 363 

1917-1919 is known as the sixty-fifth Congress, because the House of Repre¬ 
sentatives of that period is the sixty-fifth that has been elected since the 
government was established. 

Federal law does not determine who shall vote for members 
of the House of Representatives. The Constitution provides, 
simply, that all those persons in each state who are qualified 
under the constitution and laws of the state to vote for members 
of the larger of the two houses of the state legislature may 
vote also for members of the House of Representatives of the 
United States. The franchise is regulated, therefore, entirely 
by state law. 

In the fourteenth amendment to the Constitution (passed 1866-1868) 
a very great pressure is, by intention at least, brought to bear upon the 
states to induce them to make their franchise as wide as their adult male 
population. For that amendment provides that, should any state deny to 
any of its nude citizens who are twenty-one years of age the privilege of 
voting for members of the more numerous branch of its own legislature 
(and thus, by consequence, the privilege of voting for representatives in 
Congress), for any reason except that they have committed crime, its 
representation in Congress shall be curtailed in the same proportion that 
the number of persons thus excluded from the franchise bears to the 
whole number of male citizens twenty-one years of age in the state. 
This provision has in practice, however, proved of little value. It is 
practically impossible for the federal authorities to carry it satisfactorily 
into effect. 

Organization of the House. — The House, like the 
Senate, has its own rules, regulative of the number and duties 
of its officers and of its methods of doing business; and these 
rules, like those of the Senate, are chiefly concerned with the 
creation and the privileges of a great number of standing com¬ 
mittees. The committees of the House were until 1910 ap¬ 
pointed by the presiding officer of the House, the 1 Speaker 91 ; 

i The House of Representatives is not given a president by the Constitu¬ 
tion, as the Senate is. It elects its own presiding officer, whose name, of 
‘ Speaker,’ is taken from the usage of the English House of Commons, 
whose president was so called because whenever, in the old days, the Com¬ 
mons went into the presence of the king for the purpose of laying some 
matter before him, or of answering a summons from him, their president 


364 


THE GOVERNMENT OF THE UNITED STATES. 


and this power of the Speaker to appoint the committees of the 
House made him one of the most powerful officers in the whole 
government. For the committees of the House are even more 
influential than those of the Senate in determining what shall 
he done with reference to matters referred to them. They as 
a matter of fact have it in their power to control almost all the 
acts of the House. The Senate, being a comparatively small 
body, has time to consider very fully the reports of its com¬ 
mittees, and generally manages to shape its own conclusions. 
But the House is too large to do much debating : it must be 
guided by its committees or it must do nothing. It is this fact 
which made the Speaker’s power of appointment so vastly 
important. He determined who should be on the committees, 
and the committees determined what the House should do. He 
nominated those who shaped legislation. More than that, he 
shaped the rules and determined the course of business. For he 
was chairman of the Committee on Buies, which had but four 
other members, whom be regarded as his ‘ assistants,’ and that 
committee guided the House quite absolutely in the use of its 
time. The Speaker will not ‘recognize’ (that is, will not give 
the floor to) any member who seeks to upset the programme it 
has fixed. 

The extraordinary power of the Speaker often made his election 
a very exciting part of the business of each new House: for he 
was always selected with reference to what he would do in con¬ 
stituting the principal committees, and in shaping and adminis¬ 
tering the rules. 

So great had become the power of the Speaker, not only to 
control legislation but also to discipline recalcitrant members, 
and so arbitrarily did Speaker Cannon exercise his power, that at 
length opposition developed within his own party, the ‘ insurgents,’ 
who finally in 1910 combined with the Democrats to change the 
Committee on Buies. It was enlarged from five to ten members, 
six of the majority and four of the minority party, elected by 
the House, and the Speaker was deprived of his membership. 

was tlieir spokesman or Speaker. This name is used also in the legislative 
bodies of all the English colonies, — wherever, indeed, English legislative 
practices have been directly inherited, 


THE GOVERNMENT OF THE UNITED STATES. 365 

In the next session the Democratic party had a majority in the 
House and it carried through a complete change in the method 
of constituting committees. The House now elects its own 
committees, and in practice the following method is used. Each 
party holds a caucus which elects a party committee on com¬ 
mittees. These party committees select the party members for 
committees; the names thus selected are nominated to the House 
by the respective party committees and the House elects the 
members thus nominated. These changes have taken away 
much of the Speaker’s power and have placed it in the hands of 
the party leaders, for the party committees on committees are 
naturally composed of the party leaders. The autocratic character 
of the Speaker’s power has been replaced by a more democratic 
control by the party. Yet the influence of the Speaker is still great, 
and more than any one individual he can aid or hinder legislation. 

The House has so many standing committees that every repre¬ 
sentative is a member of one or another of them, — but many of 
the committees have little or nothing to do. Some of them, 
though still regularly appointed, have no duties assigned them 
by the rules. One of the most important committees is that on 
Appropriations, which has charge of the general money-spending 
bills introduced every year to meet the expenses of the govern¬ 
ment, and which, by virtue of its power under the rules to bring 
its reports to the consideration of the House at any time, to the 
thrusting aside of whatever matter, virtually dominates the 
House by controlling its use of its time. Special appropriation 
bills, which propose to provide moneys for the expenses of 
single departments, — as, for example, the Navy Department or 
the War Department, — are, by a rule of the House, taken out 
of the hands of the Committee on Appropriations and given to 
the committees on the special departments concerned. Scarcely 
less important than the Committee on Appropriations, though 
scarcely so busy as it, is the Committee on Ways and Means, 
which has charge of questions of taxation. 

The House has to depend, just as the Senate does, upon its 
standing committees for information concerning the affairs of the 
government and the policy of the executive departments, and is 
just as often and as much embarrassed because of its entire ex- 


366 THE GOVERNMENT OF THE UNITED STATES. 

elusion from easy, informal, and regular intercourse with the de¬ 
partments'. They cannot advise the House unless they are asked 
for their advice; and the House cannot ask for their advice 
except indirectly through its committees, or formally by requir¬ 
ing written reports. 

Acts of Congress. — In order to become a law or Act of 
Congress a bill must pass both houses and receive the signature 
of the President. Such is the ordinary process of legislation. 
But the President may withhold his signature, and in that case 
the measure which he has refused to sanction must receive the 
votes of two-thirds of the members of each house, given upon a 
reconsideration, before it can go upon the statute book. The 
President is given ten days for the consideration of each measure. 
If he take no action upon it within the ten days, or if within 
that period he sign it, its provisions become law; if within the 
ten days he inform Congress by special message that he will 
not sign the bill, returning it to the house in which it originated 
with a statement of his reasons for not signing it, another 
passage of the measure by a majority of two-thirds in each 
house is required to make it a law. 

There are, therefore, three ways in which a bill may become 
law: either (a) by receiving the approval of a majority in each 
house, and the signature of the President, appended within ten 
days after its passage by the houses; or ( b ) by receiving the ap¬ 
proval of a majority in each house, and not being acted upon by 
the President within ten days after its passage; or (c) by re¬ 
ceiving the approval of two-thirds of each house after having been 
refused signature by the President within ten days after its pas¬ 
sage by a majority in each house. If Congress adjourn before the 
expiration of the ten days allowed the President to consider bills 
sent him, such bills lapse unless he has signed them before the 
adjournment. 

Neither house can do any business (except send for absent 
members or adjourn) unless a majority of its members are 
present, — a majority being in the case of all our legislatures, 
both state and federal, the necessary quorum. 

In the practice of some foreign legislatures the quorum is 
much less than a majority of the members. In the English House 


THE GOVERNMENT OF THE UNITED STATES. 


367 


of Commons, for instance, it is only forty members, although the 
total number of members of the House of Commons is seven 
hundred and seven. 

When it is said that under certain circumstances a bill must be 
passed by a vote of two-thirds in order to become a law, it is 
understood to mean that it must be voted for by two-thirds of the 
members present , not necessarily by that proportion of the whole 
membership of the body. In the case of bills which the Presi¬ 
dent refuses to sign, however, the Constitution expressly says 
that it cannot be made law unless a second time passed by two- 
tliirds of each house. 

A bill may ‘ originate ’ in either house, unless it be a bill relat¬ 
ing to the raising of revenue. In that case it must originate in 
the House of Representatives, though the Senate may propose 
what amendments it pleases to a revenue bill, as to any other 
which comes to it from the House. 

If one of the houses pass a bill, and the other house amend it, 
the changes so proposed must be adopted by the house in which 
the bill originated before it can be sent to the President and be 
made a law. When the two houses disagree about amendments 
they appoint conference committees ; that is to say, each house 
appoints a committee to consult with a similar committee ap¬ 
pointed by the other house, to see what can be done towards bring¬ 
ing about an agreement between the two houses upon the points 
in dispute. 

The Federal Judiciary: its Jurisdiction. — The Judiciary 
of the United States consists of a Supreme Court, nine Circuit 
Courts of Appeals, nine Circuit Courts, eighty-three District Courts, 
and a Court of Claims. Its organization and functions rest more 
than do those of either of the other branches of the general gov¬ 
ernment upon statute merely, instead of upon constitutional pro¬ 
vision. The Constitution declares that “ the judicial power of 
the United States shall be vested in one supreme court, and in 
such inferior courts as the Congress may, from time to time, 
ordain and establish/’ and that “ the judges, both of the supreme 
and inferior courts, shall hold their offices during good behavior, 
and shall, at stated times, receive for their services a compensa¬ 
tion which shall not be diminished during their continuance in 


368 THE GOVERNMENT OF THE UNITED STATES. 

office.” It provides also that the judicial power of the federal 
government shall extend to all cases in law or equity which may 
arise under the Constitution, laws, or treaties of the United 
States; to all cases affecting ambassadors, other public ministers, 
and consuls; to all admiralty and maritime cases ; to controver¬ 
sies in which the United States is a party, controversies between 
two or more states, between a state and citizens of another state 
(the state being the suitor), between citizens of different states, 
between citizens of the same state claiming lands under grants 
from different states, and between a state or its citizens and for¬ 
eign states, citizens, or subjects. And it directs that in cases 
affecting ambassadors, other public ministers and consuls, and in 
cases in which a state is a party the Supreme Court shall have 
original jurisdiction; while in all other cases it is to have appel¬ 
late jurisdiction only, “ with such exceptions, and under such 
regulations, as the Congress shall make.” 

The judicial power of the federal government is thus made to 
embrace two distinct classes of cases: ( a ) those in which it is 
manifestly proper that its authority, rather than the authority of 
a state, should control, because of the nature of the questions in¬ 
volved: for instance, admiralty and maritime cases, navigable 
waters being within the exclusive jurisdiction of the federal 
authorities; and cases arising out of the Constitution, laws, or 
treaties of the United States or out of conflicting grants made by 
different states. (b) Those in which, because of the nature of the 
parties to the suit, the state courts could not properly be allowed 
jurisdiction ; cases affecting, for instance, foreign ambassadors, 
who are accredited to the government of the United States and 
with whom our only relations are national relations, whose privi¬ 
leges rest upon the sovereignty of the states they represent; or 
cases in which the state courts could not have complete jurisdic¬ 
tion because of the residence of the parties; for instance, suits 
arising between citizens of different states. It is always open to 
the choice of a citizen of one state to sue a citizen of another state 
in the courts of the latter’s own domicile, but the courts of the 
United States are the special forum provided for such cases. 

Power of Congress over the Judiciary. —But these pro¬ 
visions of the Constitution leave Congress quite free to distribute 


THE GOVERNMENT OF THE UNITED STATES. 369 


the powers thus set forth among the courts for whose organization 
it is to provide, and even, if it so chooses, to leave some of them 
entirely in abeyance. In other words, the Constitution defines 
the sphere which the judicial power of the United States may 
fill, while Congress determines how much of that sphere shall 
actually be occupied, by what courts and in what manner, subject 
to what rules and limitations. 

With regard to the organization of the judiciary Congress 
determines not only what courts shall be created inferior to the 
Supreme Court, but also of what number of judges the Supreme 
Court itself shall consist, what their compensation and procedure 
shall be, and what their specific duties in the administration of 
justice. It might also determine, should it see fit, what qualifica¬ 
tions should be required of occppants of the supreme bench. 

The Existing Federal Courts. — In pursuance of these 
powers, Congress has passed the Judiciary Act of September, 
1789, and the Acts amendatory thereto upon which the national 
judiciary system now rests. In 1911 all previous legislation was 
codified and the organization and jurisdiction of the lower courts 
were greatly modified. The Supreme Court consists of a chief 
justice and eight associate justices ; it is required to hold annual 
sessions in the city of Washington— sessions which begin on the 
second Monday of each October — any six of the justices consti¬ 
tuting a quorum. Next below the Supreme Court are nine Circuit 
Courts of Appeal. The territory of the United States, including 
Alaska, Porto Rico, and Hawaii, is divided into nine circuits, in 
each of which there is a Circuit Court of Appeals, consisting of 
two judges in the fourth circuit, three judges in the first, third, 
fifth, sixth, and ninth circuits and of four judges in the second, 
seventh, and eighth circuits. 

The chief justice and associate justices of the Supreme Court 
are allotted among the circuits by order of the court; the chief 
justice and the associate justices assigned to each circuit are com¬ 
petent to sit as judges of the Circuit Court of Appeals within their 
respective circuits and when so sitting shall preside. In case the 
full court is not made up, one or more district judges shall sit in 
the court. 

The Circuit Courts of Appeal exercise appellate jurisdiction to 


370 THE GOVERNMENT OF THE UNITED STATES. 


review by appeal or writ of error final decisions in tlie District 
Courts which may not be appealed direct to the Supreme Court, 
and for the most part the decisions of the Circuit Courts of Ap¬ 
peal are final; they may, however, certify to the Supreme Court 
such questions of law as they may deem best. 

The nine circuits are divided into eighty-three districts, which, 
like Congressional districts, never cross state lines ; and for each 
of these districts there has been established a district court. 
Some of the less populous states constitute each a single district; 
others are divided into two, while still others furnish sufficient 
business to warrant their being divided into four. The District 
courts are the lowest courts of the federal series, and have their 
own separate judges. 

The Court of Claims was established in 1855, to relieve Con¬ 
gress of the necessity of determining the validity of claims against 
the United States, for the settlement or adjudication of which no 
provision had been made. It consists of a chief justice and four 
associates, and sits always in Washington. Pension claims, war 
claims, and claims already rejected were excluded from its juris¬ 
diction ; but all other claims against the United States, which are 
of such a kind that they could not be settled by an ordinary suit 
at law, in equity, or in admiralty (if the United States were suable 
like an individual) are referred to it. In some instances it is 
authorized to enter judgment; in others it can only find the facts ; 
but in either case the claimant must wait for an appropriation by 
Congress for the satisfaction of his claim. 

The Court of Customs Appeals is composed of a presiding judge 
and four associates. It has exclusive jurisdiction over appeals 
from the Board of General Appraisers of the Treasury Department 
as to the classification of imported goods and the rate of duty im¬ 
posed thereon under such classifications. The court is always 
open for business and sessions may be held in any circuit at the 
discretion of the Court. 

The division of jurisdiction between the Circuit Courts of 
Appeal and the District courts is effected by act of Congress; 
and, inasmuch as Congress has not seen fit to vest in the courts 
complete jurisdiction over all cases arising under the Constitution, 
laws, and treaties of the United States, but has given to each 


THE GOVERNMENT OF THE UNITED STATES. 


371 


court power in certain specified cases, and left the rest in abey¬ 
ance, it would be impossible to give in brief compass a detailed 
account of the jurisdiction of the several courts. It must suffice 
for present purposes to say, that the District courts are given 
cognizance of all ordinary civil cases falling within the federal 
jurisdiction, of all common law suits brought by the United States, 
all torts under international law or the treaties of the United 
States, suits against consuls or vice consuls, land condemnations, 
and all cases brought under the civil rights laws; and that they 
have exclusive original jurisdiction in postal law cases, prize cases, 
admiralty and maritime cases, and suits against the United States 
for money claims not exceeding $10,000. The Circuit Courts are 
given appellate jurisdiction only. 

All judges of the United States are appointed by the President, 
with and by the consent and advice of the Senate, to serve during 
good behavior. There are in all eighty-three federal judicial dis¬ 
tricts, and for each of these, as a rule, a special district judge is 
appointed, though in thickly populated sections of the country it 
is customary to have more than one judge hold court in a district. 
Thus at present there are one hundred and four district judges. 

Federal judges of the inferior courts are, so to say, interchange¬ 
able. When necessary, a district judge can go into another dis¬ 
trict than his own and either aid or replace the district judge there. 
A district judge may also, when it is necessary for the despatch of 
business, sit as circuit judge ; and a circuit judge may, in his turn, 
upon occasion hold District court. This seems the less anomalous 
when it is remembered that the earliest arrangement was for the 
district judges to hold Circuit court always in the absence of the 
justices of the Supreme Court from circuit, or in conjunction 
with them, and that special circuit judges were appointed only 
because of the necessity for more judges consequent upon a rapid 
increase of federal judicial business. 

The District Attorney and the Marshal. — Every district 
has its own federal district attorney and its own United States 
marshal , both of whom are appointed by the President. It is the 
duty of the federal district attorney to prosecute all offenders 
against the criminal laws of the United States, to conduct all 
civil cases instituted in his district in behalf of the United States, 


372 THE GOVERNMENT OF THE UNITED STATES. 

and to appear for the defence in all cases instituted against the 
United Statesto appear in defence of revenue officers of the 
United States where they are sued for illegal action, etc. The 
marshal is the ministerial officer of the federal Circuit and 
District courts. He executes all their orders and processes, arrests 
and keeps all prisoners charged with criminal violation of federal 
law, etc., and has within each state the same powers, within 
the scope of United States law, that the sheriff of that state 
has under the laws of the stafe. He is the federal sheriff. 

The orders and processes of a state court are binding and opera¬ 
tive only within the state to which the court belongs; the orders 
and processes of United States courts, on the contrary, are bind¬ 
ing and operative over the entire Union. 

The Courts of the District of Columbia and of the territories 
are courts of the United States, but they are not federal courts; 
they bear, so far as their jurisdiction is concerned, the character 
of state and federal courts united. The only laws of the terri¬ 
tories and of the District of Columbia are laws of the United 
States, inasmuch as the legislatures of the territories act under 
statutory grant from Congress. 1 The territorial legislatures are, 
so to say, commissioned by Congress; and the laws which they 
pass are administered by judges appointed by the President. 

The territorial courts and the courts of the District of Columbia 
do not come within the view of the Constitution at all. With 
reference to them Congress acts under no limitations of power 
whatever. The rule of tenure during good behavior, for example, 
which applies to all judges of the United States appointed under 
the Constitution, does not apply to judges of the territories or of 
the District of Columbia. The term of office of territorial judges 
is fixed at four years. The federal courts sitting in the states, 
and the United States courts established in the territories, ought 
not to be thought of as parts of the same system, although the 
Supreme Court is the highest tribunal of appeal for both. 

The procedure of a federal court follows, as a rule, the pro¬ 
cedure of the courts of the state in which it is sitting; and 

1 Congress early enacted that the people of the District of Columbia should 
continue to live under the laws which had previously had force in the District 
before its cession to the federal government. 


THE government of the united states. 378 

state law is applied by the courts of the United States in all mat¬ 
ters not touched by federal enactment. Juries are constituted, 
testimony taken, argument heard, etc., for the most part, accord¬ 
ing to the practice of the state courts ; so that, so far as possible, 
both as regards the outward forms observed and the principles 
applied, a federal court is domestic, not foreign, to the state in 
which it acts. 

It is not within the privilege of Congress to delegate to the 
courts of the states the functions of courts of the United States ; 
for the Constitution distinctly provides that, besides the Supreme 
Court, there shall be no court authorized to exercise the judicial 
powers of the United States except such as Congress “ may, from 
time to time, ordain and establish.” The adoption of state courts 
by Congress is excluded by plain implication. A very interesting 
contrast is thus established between the federal judicial system 
of the United States and the federal judicial systems of Germany 
and Switzerland. 

The Federal Executive. —’“The executive power/’ says 
the Constitution, “ shall be vested in a President of the United 
States of America,” who “ shall hold his office during a term of 
four years.” Of course it is impossible for one man actually to 
exercise the whole executive power. The President is assisted 
by numerous heads of departments to whom falls so large a part 
of the actual duties of administration that it has become substan¬ 
tially correct to describe the President as simply presiding over 
and controlling by a general oversight the execution of the law ; 
which is doubtless all that the sagacious framers of the Constitu¬ 
tion expected. The Vice-President has no part in the executive 
function. He is the President’s substitute, and is chosen at the 
same time and in the same manner that the President is chosen. 

Election of a President. — The choice is not direct by 
the people, but indirect, through electors chosen by the people. 
In each state there are elected as many electors as the state has 
representatives and senators in Congress, the “electoral vote” 
of ea 3h state being thus equal to its total representation in Con¬ 
gress. 

The electors are voted for on the Tuesday following the first 
Monday of November in the year which immediately precedes 



374 THE GOVERNMENT OF THE UNITED STATES. 

the expiration of a presidential term. They assemble in the 
several state capitals to cast their votes on the second Monday 
of the January following. Their votes are counted in the house 
of Congress sitting in joint session on the second Wednesday of 
the following February. The President is inaugurated on the 
fourth of March. 

Practical Operation of the Plan : the Party Conventions. — 

The original theory of this arrangement was that each elector 
was really to exercise an independent choice in the votes which 
he cast, voting for the men whom his own judgment had selected 
for the posts of President and Vice-President. In fact, however, 
the electors only register party decisions made during the pre¬ 
vious summer in national conventions. Each party holds during 
that summer a great convention composed of party delegates from 
all parts of the Union, and nominates the candidates of its choice 
for the presidency and vice-presidency. The electors, again, are, 
in their turn, chosen according to the nominations of party con¬ 
ventions in the several states ; and the party which gains the 
most electors in the November elections puts its candidates into 
office through their votes, which are cast in obedience to the will 
of the party conventions as a matter of course. The party con¬ 
ventions, of which the Constitution knows nothing, are in fact by 
far the most important part of the machinery of election. 

Qualifications for the Office of President. — “No person, 
except a natural-born citizen, or a citizen of the United States at 
the time of the adoption of this constitution shall be eligible to 
the office of president; neither shall any person be eligible to 
that office who shall not have attained to the age of thirty-five 
years, and been fourteen years a resident within the United 
States.” 1 In respect of age there is here only a slight advance 
upon the qualifications required of a senator; in respect of citi¬ 
zenship it is very much more rigorous than in the case of mem¬ 
bers of Congress. 

It is provided by the Constitution that the compensation received by 
judges of the United States shall not be diminished during their terms of 
office; concerning the President, whose tenure of office is much briefer, 


1 Constitution, Art. II., sec. i., par. 5. 


THE GOVERNMENT OF THE UNITED STATES. 


375 


it is provided that his compensation shall neither be diminished nor in¬ 
creased during his term. 

Duties and Powers of the President. — It is the duty 

of the President to see that the laws of the United States are 
faithfully executed; he is made commander-in-chief of the army 
and navy of the United States, and of the militia of the several 
states when called into the actual service of the United States; 
he is to regulate the foreign relations of the country, receiving 
all foreign ministers and being authorized to make treaties with 
the assent of two-thirds of the Senate; he is to appoint and com¬ 
mission all officers of the federal government; and he may grant 
reprieves and pardons. The Constitution makes all his appoint¬ 
ments subject to confirmation by the Senate; but it also gives 
Congress the power to remove from the superintending view of 
the Senate the filling of all inferior official positions, by vesting 
the appointment of such subordinate officers as it thinks proper 
in the President alone, in the courts of law, or in the heads of 
departments. As a matter of fact, legislation has relieved the 
Senate of the supervision of the vast majority of executive 
appointments. The confirmation of the Senate is still neces¬ 
sary to the appointment of ambassadors, other public ministers, 
and consuls, of judges of the courts of the United States, 
of the chief military, naval, and departmental officials, of the 
principal post-office and customs officers, — of all the more 
important servants of the general government: but these con¬ 
stitute only a minority of all the persons receiving executive 
appointment. The majority are appointed without legislative 
oversight. 

The unfortunate, the demoralizing influences which have been 
allowed to determine executive appointments since President 
Jackson’s time have affected appointments made subject to the 
Senate’s confirmation hardly less than those made without its 
cooperation; senatorial scrutiny has not proved effectual for 
securing the proper constitution of the public service. Indeed, 
the “courtesy of the Senate,” — the so-called “courtesy” by 
which senators allow appointments in the several states to be 
regulated by the preference of the senators of the predominant 


876 THE GOVERNMENT OF THE UNITED STATES. 

party from tlie states concerned, has frequently threatened to add 
to the improper motives of the Executive the equally improper 
motives of the Senate. 

Reform of Methods of Appointment to Federal Offices. — 

The attempts which have been made at various times to reform 
by law the system of appointments have not been directed 
towards the higher offices filled with the consent of the Senate, 
but only towards those inferior offices which are filled by the 
single authority of the President or of the heads of the executive 
departments; have touched in their results, indeed, only the less 
important even among those offices. The Act which became law 
in June, 1883, and which is known as the “Pendleton Act,” may 
be said to cover only ‘ employees ’: *it does not affect any person 
really in authority, though it does affect a large body of federal 
servants. It provides, in brief, for the appointment by the Presi¬ 
dent, by and with the advice and consent of the Senate, of a Civil 
Service Commission consisting of three persons, not more than 
two of whom shall be adherents of the same political party, 
under whose recommendation, as representatives of the President, 
selections shall be made for the lower grades of the federal serv¬ 
ice upon the basis of competitive examination. It forbids the 
solicitation of money from employees of the government for 
political uses, and all active party service on the part of members 
of the civil administration. It endeavors, in short, to “ take the 
civil service out of politics.” 

The carrying out of those portions of the Act which relate to the 
method of choosing public officers is, however, almost entirely subject to 
the pleasure of the President. The Constitution vests in him the power 
of appointment, subject to no limitation except the possible advice and 
consent of the Senate. Any Act which assumes to prescribe the manner 
in which the President shall make his choice of public servants must, 
therefore, be merely advisory. The President may accept its directions 
or not as he pleases. The only force that can hold him to the observance 
of its principle is the force of public opinion. 

The Presidential Succession. — In case of the removal, death, 
resignation, or disability of both the President and Vice-President, the 
office of President is to be filled ad interim by the Secretary of State, or, if 
he cannot act, by the Secretary of the Treasury, or, in case he cannot act, by 
the Secretary of War ; and so on, in succession, by the Attorney-General, 


THE GOVERNMENT OF THE UNITED STATES. 37 ? 


the Postmaster-General, the Secretary of the Navy, or the Secretary of the 
Interior, the Secretary of Agriculture, the Secretary of Commerce, and 
the Secretary of Labor. None of these officers can act, however, unless 
he have the qualifications as to age, citizenship, and residence required by 
the Constitution of occupants of the presidential chair. Until 1886, the 
‘ succession ’ passed first to the president pro tempore of the Senate, and, 
failing him, to the Speaker of the House of Representatives. This was 
found inconvenient, because there are intervals now and again when there 
is neither a president pro tempore of the Senate nor a Speaker of the 
House. These officers, moreover, are by no means always of the same 
political party as the President and Vice-President. Some doubt was felt, 
too, as to whether they were ‘ officers ’ within the meaning of the Con¬ 
stitution, in the clause in which Congress is authorized to designate the 
‘ officers ’ upon whom in such cases the presidential office was to devolve. 

Relations of the Executive to Congress. — The only pro¬ 
visions contained in the Constitution concerning the relation of 
the President to Congress are these: that, “ he shall, from time 
to time, give to the congress information of the state of the 
union, and recommend to their consideration such measures as he 
shall judge necessary and expedient ”; and that “ he may, on 
extraordinary occasions, convene both houses, or either of them,” 
in extra session, “and, in case of disagreement between them, 
with respect to the time of adjournment, he may adjourn them 
to such time as he shall think proper ” (Art. II., sec. iii.). His 
power to inform Congress concerning the state of the Union and 
to recommend to it the passage of measures is exercised only in 
annual and special 1 messages.’ 

Washington and John Adams interpreted this clause to mean that 
they might address Congress, in person, as the sovereign in England may 
do : and their annual communications to Congress were spoken addresses. 
But Jefferson, the third President, being an ineffective speaker, this habit 
was discontinued, and the fashion of written messages was inaugurated 
and firmly established. 1 (Compare page 193.) Possibly, had the President 
not so closed the matter against new adjustments, this clause of the Con¬ 
stitution might legitimately have been made the foundation for a much 
more habitual and informal, and yet at the same time much more public 
and responsible, interchange of opinion between the Executive and Con¬ 
gress. Having been interpreted, however, to exclude the President from 

: President Wilson reverted to the original practice, and has read his mes¬ 
sages to Congress. 


378 THE GOVERNMENT OF THE UNITED STATES. 


any but the most formal and ineffectual utterance of advice, our federal 
executive and legislature have been shut off from cooperation and mutual 
confidence to an extent to which no other modern system furnishes a 
parallel. In all other modern governments the heads of the administrative 
departments are given the right to sit in the legislative body and to take 
part in its proceedings. The legislature and executive are thus associated 
in such a way that the ministers of state can lead the houses without 
dictating to- them, and the ministers themselves be controlled without 
being misunderstood, — in such a way that the two parts of the govern¬ 
ment which should be most closely coordinated, the part, namely, by 
which the laws are made and the part by which the laws are executed, 
may be kept in close harmony and intimate cooperation, giving coherence 
to the action of the one and energy to the action of the other. 

The Executive Departments. — The Constitution does 
not explicitly provide for the creation of executive departments, 
but it takes it for granted that such departments will be created. 
Thus it says (Art. II., sec. ii., par. 1, 2) that the President “ may 
require the opinion, in writing, of the principal officer in each of 
the executive departments, upon any subject relating to the duties 
of their respective offices,” and that Congress may vest the ap¬ 
pointment of such inferior officers as it may see fit “ in the heads 
of departments/ 7 The executive departments consequently owe 
their creation and organization to statute only. 

The first Congress erected three such departments, namely, 
the departments of State, of the Treasury, and of War ; providing, 
besides, for the creation and exercise of the office of Attorney- 
General, but not erecting a Department of Justice. In 1798 the 
management of the navy, which had at first been included in the 
duties of the War Department, was intrusted to a special Depart¬ 
ment of the Navy; in 1829 the post-office, which had been a sub¬ 
division of the Treasury, was created an independent Department; 
and in 1849 a Department of the Interior was organized to receive 
a miscellany of functions not easy to classify, except in the fea¬ 
ture of not belonging properly within any department previously 
created. 1 In 1870 the Attorney-General was put at the head of a 

1 A character like that of the Department of the Interior, it is interesting 
to remark, may be attributed to some corresponding department, bearing 
either this name or a name of like significance, in almost every other modern 
government. There is everywhere some department of state to receive 
functions not otherwise specially disposed of. 


THE GOVERNMENT OF THE UNITED STATES. 379 


regularly constituted Department of Justice; and in 1889 the 
Department of Agriculture, which had existed as a subordinate 
executive bureau since 1862, was given full standing under a 
Secretary of ‘ cabinet 9 rank; in 1903 the Department of Com¬ 
merce and of Labor was established, and in 1913 the Department 
of Labor. 

We have, thus, at present, ten executive departments, 
viz.: (1) A Department of State, which is what would be called in 
most other governments our ‘ foreign office/ having charge of all 
the relations of the United States with foreign countries. 

(2) A Department of the Treasury, which is the financial 
agency of the government, and whose functions cover the collec¬ 
tion of the public revenues accruing through the customs duties 
and the internal revenue taxes, their safe keeping and their 
disbursement in accordance with the appropriations from time to 
time made by Congress ; the auditing of the accounts of all de¬ 
partments ; the supervision and regulation of the national banks 
and of the currency of the United States ; the coinage of money; 
and the collection of certain industrial and other statistics. This 
Department, therefore, contains within it the treasury and comp- 
trolling functions which in the states are separated. 

To this Department is attached also the Bureau of Printing 
and Engraving , by which all the printing of the paper currency, 
bonds, and revenue stamps of the government is done. 

(3) A Department of War, which has charge of the mili¬ 
tary forces and defences of the Union. It has charge of the 
Military Academy at West Point, and supervision of the various 
military schools to which Congress gives aid. 

(4) A Department of the Navy, which has charge of the 
naval forces of the general government; and which has charge of 
the Naval Academy at Annapolis and the Naval War College at 
Newport. 

(5) A Department of Justice, from which emanates all the 
legal advice of which the federal authorities stand in need at any 
time, and to which is intrusted the supervision of the conduct of 
all litigation in which the United States may be concerned. To 
it are subordinate all the marshals and district attorneys of the 
United States, — all ministerial, non-judicial law officers, that is, 


380 THE GOVERNMENT OF THE UNITED STATES. 


in the service of the government. It may be compendiously de¬ 
scribed as the lawyer force of the government. It is presided over 
by an Attorney-General, all the other departments, except the 
Post-Office, being under 1 Secretaries.’ 

(6) A Post-office Department, under a Postmaster-Gen¬ 
eral, which is charged with the carrying and delivery of letters 
and parcels, with the transmission of money by means of certain 
‘ money orders ’ issued by the Department, or under cover of a 
careful system of registration, and with making the proper postal 
arrangements with foreign countries. 

These arrangements with foreign countries may be made with¬ 
out the full formalities of treaty, the consent of the President 
alone being necessary for the ratification of international 
agreements made by the Postmaster-General for the facilitation 
of the functions of the Department. The United States is a 
member of the Universal Postal Union, to which most of the 
civilized countries of the world belong. The central office of this 
Union is under the management of the Swiss administration. 
Its administrative expenses are defrayed by contribution of the 
various governments belonging to the Union. 

(7) A Department of the Interior, which has charge: 

(I) Of the management of the public lands (General Land Office ); 

(II) Of the government’s dealings with the Indians, a function 
which is exercised through a special Commissioner of Indian 
Affairs in Washington and various agencies established in dif¬ 
ferent parts of the Indian country. 

It is through this Indian Bureau , for example, that all laws con¬ 
cerning the settlement, assistance, or supervision of the tribes are 
administered, as well as all laws concerning the payment of 
claims made upon the federal government for compensation for 
depredations committed by the Indians, and laws touching the 
distribution and tenure of land among the Indians. 

(Ill) Of the paying of pensions and the distribution of bounty 
lands, a function which it exercises through a special Commis¬ 
sioner of Pensions; (IV) Of the issuing and recording of patents 
and the preservation of the models of all machines patented. 
For the performance of these duties there is a Patent Office. 
(V) Of the keeping and distribution of all public documents 


THE GOVERNMENT OF THE UNITED STATES. 381 


{Superintendent of Public Documents ) ; (YI) Of the collection 
of statistical and other information concerning education, 
and the diffusion of the information so collected for the pur¬ 
pose of aiding the advance and systematization of education 
throughout the country {The Office of Education ) ; (VII) Of the 
superintendence of the government hospital for the insane and 
the Columbia Asylum for the Deaf and Dumb ; (VIII) Of the Geo¬ 
logical Survey ; (IX) Of the Freedmen’s Hospital and the Howard 
University. 

Many of these subdivisions of the Interior, through in strict¬ 
ness subject to the oversight and control of the Secretary of the 
Interior, have in reality a very considerable play of independent 
movement. 

(8) A Department of Agriculture, which is charged with 
furthering in every possible way, by the collection of information 
not only, but also by the prosecution of scientific investigation 
with reference to the diseases of plants, etc., the agricultural 
interests of the country, and under which there are maintained a 
special Forestry Division , and the national Weather Bureau. 

(9) A Department of Commerce. — By an Act of 1903 a 
Department of Commerce and Labor was established which in 
1913 was divided, the Department of Labor becoming a separate 
Department. It is the province and duty of the Department of 
Commerce to foster, promote and develop the foreign and domes¬ 
tic commerce, the mining, manufacturing, shipping and fishing 
industries of the United States. From the Treasury Department 
there have been transferred to the Department of Commerce the 
Light-House Board and Establishment, the Steamboat-Inspection 
Service, the Bureau of Navigation, the United States Shipping 
Commissioners, the National Bureau of Standards, the Coast and 
Geodetic Survey; from the Department of the Interior, the Cen¬ 
sus Office; from the Department of State, the Bureau of Foreign 
Commerce; and under it were placed also the Fish Commission, 
and the office of Commissioner of Fish and Fisheries. 

(10) A Department of Labor. — In 1913 the Department 
of Commerce and Labor was divided and a separate Department 
of Labor was created, charged with the duty to foster, promote 
and develop the welfare of the wage earners, to improve their 


382 THE GOVERNMENT OF THE UNITED STATES. 

working conditions, and to advance their opportunities for profit¬ 
able employment. Under its direction were placed the Bureaux 
of Labor Statistics, Immigration, Naturalization, and the Chil¬ 
dren’s Bureau. 

Set apart to themselves, and therefore without representation 
in the Cabinet, there are (1) the Interstate Commerce Commis¬ 
sion , a semi-judicial body by which the federal statutes forbid¬ 
ding unjust discrimination in railway rates in interstate freight 
or passenger traffic, prohibiting certain sorts of combinations in 
railroad management, etc., are interpreted and enforced. (2) The 
Civil Service Commission , by which the Act mentioned on page 
376 is administered. (3) The Government Printing Office, 
which prints all public documents. (4) The Smithsonian Insti¬ 
tution, the National Museum, and the Bureau of Ethnology. 

Some Representative Authorities. 

Histories: 

Adams, Henry, The History of the United States under the Admin¬ 
istrations of Jefferson and Madison, 9 vols., N.Y., 1889-1891; 
Documents relating to New England Federalism, Boston, 1877. 
Adams , Herbert B., Maryland’s Influence upon Land Cessions to the 
United States, in the Johns Hopkins Studies in Historical and Politi¬ 
cal Science , 3d Series, No. 1. 

American Nation Series. 

American Statesman Series, a series of Biographies. 26 vols., 12mo, 
Boston, 1882-1891. 

Bancroft, George, History of the United States, from the discovery of 
America to the adoption of the federal constitution. Revised ed., 
6 vols., 8vo, N.Y. 

Benton, Thomas H., Thirty Years’ View; or, A History of the Work¬ 
ing of the American Government for Thirty Y r ears, 1820-1850. 
2 vols., 8vo, N.Y., 1854-1856. 

Bishop, Cortlandt F., History of Elections in the American Colonies (in 
Columbia University Studies in History, Economics, and Public 
Law), N.Y., 1896. 

Curtis, George T., History of the Origin, Formation, and Adoption of 
the Constitution of the United States. 3 vols., N.Y., 1854 1858 
1896. 

Doyle, J. A., The English Colonies in America. 5 vols., N.Y., London 
and N.Y., 1882-1907. 


The government of the united states. 


383 


Fisher, George P., The Colonial Era, N.Y., 1892. 

Fiske , John, The Critical Period of American History, Boston, 1888, 
1897. 

Frothingham , Richard, Rise of the Republic of the United States, 3d ed., 
Boston, 1881. 

Hart , Albert B., Formation of the Union, 23d ed., London and N.Y. 

Hildreth , R., History of the United States from the Discovery of Amer¬ 
ica to the End of the Sixteenth Congress (1821). Two Series, 
6 vols., New ed., N.Y., 1879. 

Holst , H. von, The Constitutional and Political History of the United 
States. Trans, from the German. 7 vols., Chicago, 1877-1892. 

Jatneson, J. F. (editor), Essays in the Constitutional History of the 
United States in the Formative Period, 1775-1789, Boston, 1889. 

Johnston , Alexander, History of American Politics, 3d ed., revised, 
N.Y., 1890; The First Century of the Constitution, in the New 
Princeton Review , September, 1887. 

London , Judson S., The Constitutional History and Government of the 
United States. A Series of Lectures. Boston, 1889. 

Lodge , Henry C., A Short History of the English Colonies in America, 
N.Y., 1881. 

MacMaster , John B., History of the People of the United States, 8 vols., 
N.Y., 1913. 

Pitkin , Timothy, Political and Civil History of the United States of 
America from their Commencement to the Close of the Adminis¬ 
tration of Washington, 2 vols., 8vo, New Haven, 1828. 

Rhodes , James F., History of the United States from the Compromise of 
1850, 8 vols., N.Y., 1893-1906. 

Roosevelt , Theodore, The Winning of the West, 4 vols., London and 
N.Y., 1889-1896. 

Schouler , James, History of the United States of America under the 
Constitution, 7 vols., N.Y., 1889-1913. 

Scott, Eben G., Development of Constitutional Liberty in the English 
Colonies of America, N.Y., 1882. 

Sloane, William M., The French War and the Revolution, N.Y., 1893. 

Stanwood, Edward, A History of the Presidency, 2 vols., Boston and 
N.Y., 1916. 

Sumner, William G., Politics in America, 1776-1876. North American 
Review, January, 1876, p. 47. 

Taylor, Hannis, The Origin and Growth of the English Constitution, 
2 vols., Boston, 1889-1898. 

Thwaites, Reuben G., The Colonies, 1492-1750, 22d ed., London and 
N.Y., 1910. 


384 


THE GOVERNMENT OE THE UNITED STATES. 


Tucker, George, The History of the United States from their Coloniza 
tion to the End of the Twenty-sixth Congress in 1841, 4 vols., 
Phila., 1856-1857. 

Walker, Francis A., The Making of the Nation, N.Y., 1895. 

Wilson, Woodrow, Division and Reunion, 1829-1889, 13th ed., London and 
N.Y., 1898; and History of the American People, 5 vols., N.Y., 1908. 

Winsor, Justin (editor), Narrative and Critical History of America, 
Yol. VII., Boston, 1888. Contains full bibliographical notes. 

The controversial literature accompanying and preceding the War of 

Secession may be seen, representatively, in : 

Adams, John, Works. 

Bledsoe, Albert T., Is Davis a Traitor? Balto., 1866. 

Brownson, O. A., The American Republic: its Constitution, Tendencies, 
and Destiny, N.Y., 1866 and 1886. 

Calhoun, John Caldwell, Works. 

Centz, P. C. (B. J. Sage), The Republic of Republics, 4th ed., Boston, 
1881. ' 

Hurd, J. C., The Theory of Our National Existence, Boston, 1881. 

Jefferson, Thomas, Works. 

Stephens, Alexander H., A Constitutional View of the War between the 
States, 2 vols., 8vo, Pliila., 1868. 

Webster, Daniel, Speeches. 

Commentaries and Treatises: 

Atkinson, C. T., The Committee on Rules and the Overthrow of Speaker 
Cannon, N.Y., 1911. 

Beard, C. A., American Government and Politics. 

Borgeaud, Charles, The Adoption and Amendment of Constitutions in 
Europe and America, N.Y., 1895. 

Boutmy, Emile, Studies in Constitutional Law, London and N.Y., 
1891. 

Bryce, James, The American Commonwealth, 2 vols., Revised ed., 
N.Y., 1915. 

Burgess, John W., Political Science and Constitutional Law, 2 vols., 
Boston, 1891. 

Carter, C.H., Connecticut Boroughs, in New Haven Historical Society's 
Papers, Yol. IY. 

Cooley, Thomas M., Treatise on the Constitutional Limitations which 
rest upon the Legislative Power of the States of the American 
Union, 2d ed., Boston, 1871; The General Principles of Con¬ 
stitutional Law in the United States of America, Boston, 1886, 
and several later editions. And (with others) Constitutional 


THE GOVERNMENT OF THE UNITED STATES. 


385 


History of the United States as seen in the Development of American 
Law, a survey of the successive constitutional decisions of the 
Supreme Court of the United States, N.Y., 1889. 

Convin , E. S., The Doctrine of Judicial Review, Princeton, 1914. 

Coxe, Brinton, Judicial Power and Unconstitutional Legislation, 
Phila., 1893. 

Dicey , Albert V., Lectures Introductory to the Study of the Law of the 
Constitution, 8th ed., London, 1915. This book, though a com¬ 
mentary on the English constitution, contains much excellent com¬ 
ment also on our own. 

Digest of State Constitutions. Prepared for the use of the New York 
State Constitutional Convention. Albany, 1915. 

Dupriez, L., Les Ministres dans les principaux Pays d’Europe et d’Am6 
rique, 2 vols., Paris, 1892. Vol. II., pp. 3 et seq. 

Ely , Richard T., Taxation in American States and Cities, N.Y., 1888. 

The Federalist , by Alexander Hamilton , James Madison , and John Jay. 

Fiske, John, Civil Government in the United States considered with 
Some Reference to its Origins, Boston, 1890. 

Follett , M. P., The Speaker of the House of Representatives, London 
and N.Y., 1896. 

Ford , H. J., The Rise and Growth of American Politics. 

Ford , W. C., The American Citizen’s Manual. Part I. N.Y., 1882. 

Goodnow , Frank J., Comparative Administrative Law, 2 vols., London 
and N.Y., 1893; Municipal Home Rule, London and N.Y., 1895. 

Haines , C. G., The American Doctrine of Judicial Supremacy, N.Y. 

Harrison , Benjamin, This Country of Ours, N.Y., 1897. 

Hart , A. B., Actual Government, 3d ed., 1910. 

Hart and McLaughlin , Cyclopedia of American Government, N.Y. and 
London, 1914. 

Howard , George E., Local Constitutional History of the United States, 
Vol. I., 8vo, Balto., 1885. 

Jameson , J. F., Introduction to the Constitutional and Political History 
of the Individual States, in the Johns Hopkins University Studies in 
Historical and Political Science , 4th Series, No. V. 

Johns Hopkins Studies in Historical and Political Science , 14 vols., 
Balto., 1883-1896. 

Maine , Sir II. S., Popular Government, N.Y., 1886. Especially Chap. 
VI. 

McConachie , L. C., Congressional Committees. 

McCall , S. W., The Business of Congress, N.Y., 1911. 

Oberholzer, E. P., The Referendum in America, New ed., N.Y., 1911. 

Parker , Joel, Jaffrey Address, 1873. Origin, Organization, and la- 


386 THE GOVERNMENT OF THE UNITED STATES. 


fluence of the Towns of New England. Proceedings Mass. Hist. 
Soc’y, June, 1886. 

Poore, Ben: P., Federal and State Constitutions, Colonial Charters, and 
other Organic Laws of the United States, 2 vols., Washington, 
1877. 

Schoider, James, Constitutional Studies, N.Y., 1897. 

Shires and Shire Towns in the South. Lippincott’s Magazine , Aug., 
1882. 

Sloane, W. M., Party Government in the U.S., N.Y. and London, 1914. 

Stevens, C. E., Sources of the Constitution of the United States, Lon¬ 
don and N.Y., 1894. 

Story, Joseph, Commentaries on the Constitution. Ed. by T. M. Cooley. 

Thorpe, Francis N., Compiled Federal and State Constitution, 7 vols., 
Govt. Printing Office, 1909. 

Tocqueville, Alexis de, Democracy in America. Translated by Henry 
Reeve. New ed., London, 1875. 

Wilson, Woodrow, Congressional Government, A Study in American 
Politics, Boston, 1885; and Constitutional Government in the United 
States, N.Y., 1908. 

Young , J. T., The New American Government and its Work, N.Y., 1916. 


X. 


THE GOVERNMENTS OF SWITZERLAND. 

Feudalism in Switzerland. — Until the beginning of the 
fourteenth century the towns and communes of the country now 
called Switzerland were all held fast in the meshes of the feu¬ 
dal system. Real vassalage, indeed, such as the low countries of 
France and Germany knew, had never penetrated to all the val¬ 
leys of the Alps; many a remote commune had never known any¬ 
thing but a free peasantry; and hardly anywhere near the heart 
of the great mountains had feudal fealty meant what it meant 
elsewhere. Still great neighbor lords and monasteries had swept 
even these mountain lands at least nominally within their over¬ 
lordships, and most of the Swiss Cantons of to-day represent 
pieces of old feudal domains. 

First Movements towards Cantonal Independence. — In 
1309, however, began the process which was to create the Switzer¬ 
land of our time. In that year the Cantons of Schwyz, Uri, and 
Unterwalden, lying close about the lake of Lucerne, won from the 
Emperor Henry VII. the recognition of their freedom from all 
supremacy save that of the Empire itself. They had already, 
about the middle of the thirteenth century, drawn together into 
a league which was to prove the seed of the modern Confederacy. 
That Confederacy has two distinguishing characteristics. It has 
brought down to us, through an almost unbroken tradition, the 
republican institutions of the Middle Ages; and it has by slow 
processes of cautious federation drawn together into a real union 
communities the most diverse alike in point of race, of language, 
and of institutions without destroying their individuality. 

The Processes of Confederate Growth. — In its briefest 
terms the story is this. The Cantons broke from the toils of the 

387 


388 THE GOVERNMENTS OF SWITZERLAND. 

feudal system while still in possession of those local liberties 
which the disintegrateness of that system gave leave to grow 
wherever courageous men could muster numbers enough to assert 
their independence; having a common cause against the feudal 
powers about them, they slowly drew together to each other’s 
support; and, having allied themselves, they went on to show the 
world how Germans, Frenchmen, and Italians, if only they respect 
each the other’s liberties as they would have their own respected, 
may by mutual helpfulness and forbearance build up a union at 
once stable and free. Several centuries elapsed before the devel¬ 
opment was complete, for the Confederation, as finally made up, 
consisted of two very different elements: of strong and for the 
most part aristocratic free cities and of quiet rural peasant 
democracies. It was necessarily a long time before even common 
dangers and common interests brought proud Cantons like Bern 
and aristocratic cities like Geneva into cordial relations with 
Schwyz, Uri, and Unterwalden, the humble originators of the 
Confederacy. But circumstances constrained and wisdom pre¬ 
vailed : so that union was at last achieved. 

French Interference. — The year 1513 may be taken as 
marking the close of the period during which the Confederacy 
won the place it was always to keep among the powers of Europe. 
In that year the League was joined by the last of those thirteen 
German Cantons which were to constitute its central membership 
down to the French Revolution. It was not till 1848, however, 
that its constitution was put upon its present foundations; and 
not till 1874 that that constitution received at all points its pres¬ 
ent shape. In the meantime events of the greatest magnitude 
gave direction to Swiss affairs. The great powers bad recognized 
the independence of Switzerland in the Treaty of Westphalia, 
1648. The thirteen original Cantons had received great French 
cities, like Geneva, to the west, and various Italian lands, to the 
south, either into close alliance or into fixed subjection. The 
French Revolution had sent French troops into Switzerland, in 
support of a fruitless attempt to manufacture out of the always 
stiffly independent Cantons, hitherto only confederates, a com¬ 
pact and centralized ‘Helvetic Republic,’ after the new model 
just set up in unhappy France (1798-1802). Napoleon had inter- 


THE GOVERNMENTS OF SWITZERLAND. 389 

vened (1803-1814) for the purpose of both loosing these artificial 
bonds and creating a new cement for the League in the shape of 
a common allegiance to himself. And, in 1815, the pressure of 
the French power being removed, reaction had come. The irri¬ 
tated Cantons, exasperated by the forms of a government not of 
their own choosing, had flung apart, to the practice of principles 
of cantonal sovereignty broader, extremer even than those upon 
which they had based their Union before 1798. And then reac¬ 
tion, in its turn, brought its own penalties. Troubles ensued 
which read very much like those, so familiar to Americans, 
which forced a strong federal government upon the United 
States. 

The Sonderbund War.—It was, however, differences of 
religious, not of political, opinion which were in Switzerland the 
occasion of the strife which was to bring union out of disunion. 
After the power of Napoleon had been broken, the Congress 
of Vienna had sought to readjust all the arrangements that he 
had disturbed, and Swiss affairs had not been overlooked. The 
Cantons were induced to receive Geneva, Valais, Neuchatel, and 
the territories hitherto held as dependencies, into full confed¬ 
erate membership, and to agree to a Pact (known as the Pact of 
1815) which gave to the League, with its increased membership 
of twenty-two Cantons, a new basis of union. One of the clauses 
of that Pact contained a solemn guarantee of the rights and privi¬ 
leges of the monasteries still maintained in the Koman Catholic 
Cantons: and upon that guarantee were based the hopes of all 
parties for peace among the members of the League. But the 
guarantee was broken down. The wave of democratic reform 
swept steadily and resistlessly through Switzerland during the 
revolutionary period of 1830-1848, and where the Protestant and 
Roman Catholic parties were nearly equal in popular force threat¬ 
ened not a few of the oldest foundations of the mediseval church. 
The crisis was first felt in Zurich, where the excesses of a radical 
party temporarily in control brought about, in 1839, a violent 
reaction. The next year saw the disturbance transferred to 
Aargau. There the anti-Catholic party, commanding, during a 
period of constitutional revision, a narrow popular majority, and 
exasperated by the violent opposition tactics of the clerical party, 


390 


THE GOVERNMENTS OF SWITZERLAND. 


forced a vote in favor of the abolition of the eight monasteries 
of the Canton. The Diet of the Confederation was thereupon 
asked by the aggrieved party whether it would permit so flagrant 
a breach of the Pact of 1815. It was forced by a conflict of 
interests to a compromise, agreeing to the abolition of four of 
Aargau’s eight monasteries. This was in August, 1843. The 
next month saw the formation of a separate League (Sonderbund) 
by the seven Eoman Catholic Cantons, Schwyz, Uri, Unterwal- 
den, Luzern, Freiburg, Valais, and Zug. The deputies of these 
Cantons-were, however, slow in withdrawing from the Diet, and 
the Diet was reluctant to come to open strife with its recalcitrant 
members. Four years this league within a league was permitted 
to continue its obstructive agitation. But at last, in November, 
1847, war came,— a sharp, decisive contest of only eighteen days’ 
duration, in which the seceded Cantons were overwhelmed and 
forced back to their allegiance. 

The New Constitution. — Constitutional revision followed 
immediately. The Pact of 1815 was worn out: a strong and pro¬ 
gressive constitution had become a necessity which not even the 
party of reaction could resist or gainsay. By the Constitution of 
1848 there was created, out of the old discordant Confederation 
of States ( Staatenbund ) the present federal State (Bundesstaat ). 
That Constitution, as modified and extended by the impor¬ 
tant revision of 1874, is the present Constitution of Swit¬ 
zerland. 

Character of the Constitution. — The federal government 
thus established has many features which are like, as well as 
many which are very unlike, the familiar features of our own 
national system. It has had, since 1874, a federal Supreme 
Court, which is in many important fields of jurisdiction the high¬ 
est tribunal of the land; and it has had since 1848 a Legislature 
consisting of two branches, or Houses, the one representative of 
the people, the other representative of the states of the Confed¬ 
eration. The popular chamber is called the ‘National Council ’ 
(der Nationalrat), the federal senate, the ‘Council of States’ 
(der Standerat). The former represents the people as a whole; 
the latter, the States as constituent members of the Confedera¬ 
tion. 


THE GOVERNMENTS OF SWITZERLAND. 


391 


Much of the resemblance of these arrangements to our own is due 
to conscious imitation. The object of the reformers of 1848 and 1874 was 
not, however, to Americanize their government, and in most respects it 
remains distinctively Swiss. 

Nationality and State Sovereignty. —Much as such in¬ 
stitutions resemble our own federal forms, the Constitution of 
Switzerland rests upon federal foundations such as our own gov¬ 
ernment had during the first half century of its existence rather 
than upon national conceptions such as have dominated us since 
the war between the States. The Swiss Constitution does indeed 
expressly speak of the Swiss nation, declaring that a the Swiss 
Confederacy has adopted the following Constitution with a view 
to establishing the union (Bund) of the Confederates and to main¬ 
taining and furthering the unity, the power, and the honor of the 
Swiss nation ”: and not even the war between the States put the 
word nation into our Constitution. But the Constitution of 
Switzerland also contains a distinct and emphatic assertion of 
that principle of divided sovereignty which is so much less fa¬ 
miliar to us now than it was before 1861. It speaks of the Con¬ 
federation as formed by a the people of the twenty-two sovereign 
Cantons,” and it explicitly declares that “the Cantons are sover¬ 
eign, so far as their sovereignty is not limited by the federal 
Constitution, and exercise as such all rights which are not con¬ 
ferred upon the federal power ”; and its most competent inter¬ 
preters are constrained to say that such a constitution does not 
erect a single and compacted state of which the Cantons are only 
administrative divisions, but a federal state, the units of whose 
membership are themselves states, possessed, within certain 
limits, of independent and supreme power. The drift both of 
Switzerland’s past history and present purpose is unquestion¬ 
ably towards complete nationality; but her present Constitution 
was a compromise between the advocates and the opponents of 
nationalization; and it does not yet embody a truly national 
organization or power. 

Large Constitutional Grants. — At the same time, the 
grants of power under the Swiss Constitution have from the first 
been both larger and less definite than those contained in the 
Constitution of the United States. It contains such indefinite 


392 the governments of Switzerland. 

grants as these: that the federal legislature shall have power to 
pass “laws and resolutions concerning those subjects which the 
Confederacy is commissioned by the federal Constitution to act 
upon”; to control the foreign relations of the Cantons; to guar¬ 
antee the constitutions and territories of the Cantons; to provide 
for the internal safety, order, and peace of the country; to adopt 
any measures “ which have the administration of the federal Con¬ 
stitution, the guaranteeing of the cantonal constitutions, or the 
fulfilment of federal duties for their object”; and to effect revi¬ 
sions of the federal Constitution. 

It adds to such federal powers as we are familiar with 
the authority to regulate religious bodies and monastic orders, 
to control the manufacture and sale of alcoholic liquors, to estab¬ 
lish general sanitary regulations in the case of certain diseases, 
to control the construction and operation of all railroads, to regu¬ 
late labor in factories, to provide for the compulsory insurance 
of workmen, and to legislate throughout the whole field of com 
mercial law. The federal government is given, besides, a large 
power of superintendence. It has supervision of streams and 
forests, and of the more important roads and bridges; it has the 
right to disapprove of and annul the press laws of the several 
cantons, and their regulations with regard to the acquisition of 
residence and the franchise in the communes; and it exercises 
in many another matter a general oversight and guardianship. 

Guarantee of the Cantonal Constitutions. — The Swiss fed¬ 
eral Constitution is more definite in guaranteeing to the Cantons 
their constitutions than our federal Constitution is in guaranteeing 
to the States “ a republican form of government.” The guarantee 
is made to include the freedom of the people and their legal and 
constitutional rights; the exercise of those rights under repre¬ 
sentative or democratic forms; and the revision of any cantonal 
constitution whenever an absolute majority of the citizens of the 
Canton desire a revision. 

This ‘ guarantee ’ is not used or understood in Switzerland as it is in the 
United States. Here the-sanction and support of the federal government 
is taken for granted, unless the constitutional arrangements of a State 
are challenged as unrepublican. In Switzerland it is expected that each 
Canton shall seek the explicit sanction or guarantee of the federal govern¬ 
ment for its constitution, and even for each amendment as added. 


THE GOVERNMENTS OF SWITZERLAND. 


393 


The Cantonal Governments. 

The Cantonal Constitutions and the Federal Constitution. 

— So deeply is Swiss federal organization rooted in cantonal 
precedents, that an understanding of the government of the Con¬ 
federation is best gained by studying first the political institu¬ 
tions of the Cantons. At almost all points the federal government 
exhibits likeness to the governments of the Cantons, out of whose 
union it has grown. As our own federal Constitution may be 
said to generalize and apply colonial habit and experience, so the 
Swiss Constitution may be said to generalize and apply cantonal 
habit and experience: though both our own Constitution and that 
of Switzerland have profited largely by foreign example also. 

In some respects the Swiss Constitution is more conserva¬ 
tive — or, if you will, less advanced — than the Constitution of the 
United States. Those who have fought for union in Switzerland 
have had even greater obstacles to overcome than have stood in 
the way of the advocates of a strong central government in this 
country. Differences of race, of language, and of religion, as 
well as stiffly opposing political purposes, have offered a persist¬ 
ent resistance to the strengthening and even the logical develop¬ 
ment of the prerogatives of the federal power. The Constitution 
of the Confederation, therefore, bears many marks of compromise. 
It gives evidence at certain points of incomplete nationalization 
not only, but even of imperfect federalization. Cantonal insti¬ 
tutions are, consequently, upon a double ground entitled to be 
first considered in a study of the governments of Switzerland. 
Both their self-assertive vitality and their direct influence upon 
federal organization make them the central subject of Swiss 
politics. 

Position of the Legislative Power. — The development of 
political institutions has proceeded in the Swiss Cantons rather 
according to the logic of practical democracy than according to 
the logic of the schools. The Swiss have not, for one thing, 
hesitated to ignore in practice all dogmas concerning the separa¬ 
tion of legislative, executive, and judicial functions. I say ‘in 
practice*; for in theory such distinctions are observed. The 


394 


THE GOVERNMENTS OF SWITZERLAND. 


constitutions of fully half the Cantons say explicitly that legisla* 
tive, executive, and judicial functions shall be kept fundamen¬ 
tally distinct; but in the practical arrangements actually made 
the line of demarcation is by no means sharply drawn. The 
leading principle according to which they proceed in all political 
arrangements is, that in every department of affairs the people 
must, either immediately or through representatives, exercise a 
direct, positive, effective control. They do not hesitate, there¬ 
fore, to give to their legislative bodies a share both in the admin¬ 
istration and in the interpretation of laws; and these bodies are 
unquestionably the axes of cantonal politics. 

A Single House. — A very great variety of practice marks 
the organization of government in the Cantons. Each Canton has 
had its own separate history and has, to a certain extent, worked 
out its own individual political methods. But there is one point 
of perfect uniformity, —the Legislature of each Canton consists 
of but a single House. The two Houses of the federal legisla¬ 
ture have been made after foreign, not after Swiss, models. In 
Uri, Upper and Lower Unterwalden, Glarus, and Appenzell 
Interior and Exterior this single lawmaking body is the Lands- 
gemeinde, the free assembly of all the qualified voters, the folk- 
moot ; but in the other Cantons the legislative assembly is repre¬ 
sentative. Representatives are elected by popular vote in all 
the Cantons, and in ten by the method of proportional represen¬ 
tation. 

Elections are for a. term which varies from two years to five in the 
different Cantons, the rule being a term of from three to four years. The 
number of representatives bears a proportion to the number of inhabitants 
which also varies as between Canton and Canton. In Zug there is one 
member of the legislature for every 350 inhabitants ; in Bern one to every 
3000. As a result of the low ratios, the cantonal legislators have a rela¬ 
tively large membership. 1 

In most of the Cantons the legislative body is called the Great Council 
( Grossrat )—the executive body being the Lesser Council—in some it is 
called the Cantonal Council (Kantonsrat ). 

Functions of the Cantonal Legislatures. — The functions 
of these councils have the inclusiveness characteristic of Swiss 

1 Brooks, Government and Polities of Switzerland, p. 313. 


THE GOVERNMENTS OF SWITZERLAND. 


395 


political organization. Not only are they entrusted with such 
legislative power as the people are willing to grant; they also, as 
a rule, select many of the administrative officers oft-the Canton, 
and exercise, after such election, a scrutiny of administrative 
affairs which penetrates to details and keeps executive action 
largely within their control. It is a recognized principle of can¬ 
tonal government, indeed, that the executive body — executive 
power, as we shall see, being vested in a board or commission, 
not in an individual — is a committee of the representatives of 
the people, — a committee of the legislative council. 1 To that 
council they are responsible, as the selectmen of a New-England 
town are responsible to the town-meeting (page 341). 1 

The Executive Power is collegiate in all the Cantons, is 
exercised, that is, not by a single individual or by several indi¬ 
viduals acting independently of each other, but by a commission. 
This commission is variously called in the different Cantons. In 
some it is known as the “ Landammann and Council/’ in others 
as the “ Estates-Commission ” ( Standeskommission ), in some as 
the “ Smaller Council ”; but in most as the “ Administrative 
Council ” ( Regierungsrat ). Its term of office varies in the differ¬ 
ent Cantons with the term of the legislative body, with which it 
is always coincident; but the custom is reelection, so that the 
brief tenure does not in practice result in too frequent changes in 
executive personnel. The members of the executive have always 
in the mountain Cantons been chosen by the people themselves; 
in the others they were formerly elected always by the legislative 
council — whence the name, “ smaller council,” which they bear 
in some Cantons. Now, however, direct election by the people 
has been substituted in all but two of the Cantons. Whether 
elected by the people or by the Great Council, however, the 
Administrative Council remains, in function, a committee of the 
legislative body. Its members freely take part in the business 
of legislation and in the debates of the Great Council. It in fact 
originates most of the measures of each session, and is looked to 
for guidance in every matter of consequence. It does not resign 
if outvoted upon its proposals. It is, on the contrary, regarded in 
most of the Cantons rather as a business head than as a body of 
1 Orelli, p. 99. 


896 


THE GOVERNMENTS OF SWITZERLAND. 


party leaders, and its membership is usually made up, not from 
one, but from the several political parties of the Canton. 

The Administrative Council usually consists of from five to 
seven members, though in the Cantons of Bern and Appenzell 
Interior it contains nine, and in Lower Unterwalden, eleven. It 
has proved necessary of late years to give over the attempt to 
act in all matters as a Board, and it has become usual to divide 
the work of the Council among departments. But these depart¬ 
ments are under the general direction of the Council as a whole, 
and the administration of a canton has usually a very real cohe¬ 
rence and an intimate coordination. 

The People’s Control over Legislative Action. — Although 
the people have delegated their legislative powers to representa¬ 
tive chambers in all the Cantons except those which still retain 
their primitive Landsgemeindeyi, they have nevertheless kept in 
their own hands more than the mere right to elect representatives. 
The largest of the Cantons (Bern) has but a little more than half 
a million inhabitants ; the majority of the Cantons have less than 
one hundred thousand apiece ; and the average population, taking 
big and little Cantons together, is only about one hundred and 
twenty thousand. Their average area scarcely reaches six hun¬ 
dred and forty square miles. The people of such communities 
stand, as it were, in the midst of affairs. They are in a sense 
always at hand to judge of the conduct of the public business. 
Their feelings and their interests are homogeneous, and there is 
the less necessity to part with their powers to representatives. 
In seven of the German Cantons a certain number of citizens (the 
number varies from one to twelve thousand) can demand a popu¬ 
lar vote upon the question whether the Great Council shall be 
dissolved or not; and if the vote goes in the affirmative the 
chamber’s term is ended and a new election takes place at once. 
If this method of control is no longer used, it is because more 
effective methods have been substituted. In all the Cantons the 
question of constitutional revision can be brought to popular 
vote upon petition, and the revision, if undertaken, may go any 
length in changing or reversing the processes of legislation. 

The Initiative: Imperative Petition. — So far has the 
apparent logic of democracy been carried in Switzerland that the 


THE GOVERNMENTS OP SWITZERLAND. 


397 


people exercise in several ways a direct part in lawmaking. 
The right of petition, which is recognized in every country where 
popular rights exist at all, has become in Switzerland a right of 
initiative in legislation. In every Canton the people have been 
granted the right to initiate constitutional reforms by petition ; 
and in all except Freiburg the same right has been established 
with regard to the revision or enactment of ordinary laws. In 
the Confederation petitions signed by fifty thousand voters have, 
since 1891, been imperative in respect of the introduction of con¬ 
stitutional amendments. In the case of ordinary legislation, 
specific laws may be proposed by petition, in all the Cantons 
except the one I have named; the legislature must submit the 
law proposed to the popular vote; and its adoption at the polls 
puts it upon the statute book. 

In the case of constitutional amendments, it is generally pro¬ 
vided that either general or specific changes may be proposed: 
that is, that the changes may be proposed either in general terms 
or in definitive and final form, ready for adoption. If the pro¬ 
posal is couched only in general terms, the legislature may either 
formulate the desired amendment at once and submit it to the 
people, or, if it disapprove of the change proposed, it may first 
submit the general question to the vote of the electors. If, in the 
latter event, the vote be in the affirmative, the legislature must 
proceed to formulate the necessary article or articles, and these 
must be submitted in their definitive shape once more to the 
popular verdict. If the petition itself embody a specific change 
already drawn and formulated, the amendment must go in that 
shape to the vote, and its adoption makes it part of the funda¬ 
mental law. The number of signatures required for these im¬ 
perative petitions varies with the size of the Cantons. Petitions 
demanding a change in the fundamental law of the Confederation 
must be signed, as we have seen, by not less than fifty thousand 
voters. 

In the earlier years of its use, the constitutional initiative in 
the Confederation gave rise to severe criticism through the adop¬ 
tion of a constitutional amendment which aimed a blow at the 
Jews, under the disguise of forbidding the slaughtering of ani¬ 
mals by bleeding j but since 1900 the use of the initiative has 


398 


THE GOVERNMENTS OF SWITZERLAND. 


justified itself. “ The measures submitted during the later period 
were moderate and progressive. Those which failed laid an 
educational foundation for reforms which are likely to be made 
in the not distant future, while the two successful amendments 
represent substantial achievement.” 1 * In the Cantons the expe* 
rience has been similar. 

The Referendum. — In every Canton of the Confedera¬ 
tion, except Freiburg only, the right of the people to have all im¬ 
portant legislation referred to them for confirmation or rejection 
has now been, in one form or another, established by law. In the 
smaller Cantons, which have had, time out of mind, the directest 
forms of democracy, this legislation by the people is no new thing; 
they have always had their Landsgemeinden , their assemblies of 
the whole people, and the legislative function of their Councils 
has long been only the duty of preparing laws for the considera¬ 
tion of the people. Among the Cantons which have representa¬ 
tive institutions, on the other hand, the Referendum assumes a 
different form. In some of them laws must be submitted to the 
vote of the electors only when their submission is demanded by 
petition, with the requisite number of signatures. This is called 
the 1 optional ? or ‘ facultative ’ Referendum. In the rest of the 
Cantons (always excepting Catholic and conservative Freiburg) 
substantially all substantive changes in the laws must be sub¬ 
mitted to the electors, and the action of their legislatures is 
periodically voted upon. This is known as the 1 obligatory ’ Ref¬ 
erendum. 2 The Federation itself has had the optional Referendum 
since 1874. The Referendum is, moreover, everywhere obligatory, 
whether in the Confederation or in the several Cantons, in the 
case of every constitutional change. Administration and the 
ordinary budget are usually excepted from its operation, and it is 
made to apply, within the field of ordinary legislation, only to 
laws of a general character; but in most of the Cantons it is made 
to cover also all appropriations of an unusual character or above 
a certain sum; and in Valais it applies only to certain financial 
measures. 

1 Brooks, Government and Politics of Switzerland , p. 152. 

2 Eleven Cantons have adopted the obligatory referendum for ordinary 
legislation. 


THE GOVERNMENTS OF SWITZERLAND. 


399 


Origin of the Referendum. — The term Referendum is as 
old as the sixteenth century, and contains a reminiscence of the 
strictly federal beginnings of government in two of the present 
Cantons of the Confederation, Graubiinden, namely, and Valais. 
These Cantons were not at that time members of the Confedera¬ 
tion, but merely districts allied with it (zugewandte Orte). Within 
themselves they constituted very loose confederacies of Com¬ 
munes (in Graubiinden three, in Valais twelve). The delegates 
whom the Communes sent to the federal assembly of the district 
had to report every question of importance to their constituents 
and crave instruction as to how they should vote upon it. This 
was the original Referendum. It had a partial counterpart in the 
Constitution of the Confederation down to the formation of the 
present forms of government in 1848. Before that date the mem¬ 
bers of the central council of the Confederation acted always 
under instructions from their respective Cantons, and upon ques¬ 
tions not covered by their instructions, as well as upon all matters 
of unusual importance, it was their duty to seek special direction 
from their home governments. They were said to be commis¬ 
sioned ad audiendum et referendum. The Referendum as now 
adopted by almost all the Cantons bears the radically changed 
character of legislation by the people. Only its name now gives 
testimony as to its origin. 1 

Its Operation. — In respect of constitutional changes the use 
of the Referendum is not peculiar to Switzerland. In that field its 
use in this country is older than its use in Switzerland. And in its 
application to ordinary laws it is modern even in Switzerland. 
Its earliest adoption was in 1831, and it was not until the decade 
1864-1874 that it won its way into the constitutional practice of 
the greater Cantons. It led in the earlier years to the rejection 
of radical legislation, even to the rejection of radical labor legis¬ 
lation, such as the ordinary voter might be expected.to accept 
with avidity. The Swiss populations, being both homogeneous 
and deeply conservative, long resisted the infection of modern 
radical opinion, but in recent years progress toward social legis¬ 
lation has been marked. They have shown themselves apt to 
reject, also, complicated measures which they do not fully com- 
i Orelli, p. 104. 


400 THE GOVERNMENTS OF SWITZERLAND. 

prehend, and measures involving expense which seems to them 
unnecessary. And they have shown themselves not a little in¬ 
different, too. The vote upon most measures submitted to the 
ballot is usually very light; there is not much popular discus¬ 
sion ; and the Referendum by no means creates that quick interest 
in affairs which its originators had hoped to see it excite. 

Local Government: The Districts. — Local government in 
the Cantons exhibits a twofold division, into Districts and Com¬ 
munes. The District is an area of state administration, the 
Commune an area of local self-government. The executive func¬ 
tions of the District, the superintendency of police, namely, and 
the carrying into effect of the cantonal laws, are entrusted, as a 
rule, not to a board, but to a single officer,—a Bezirksamman 
or Regierungs-Statthalter , — who is either elected by popular vote 
in the District or appointed by one of the central cantonal coun¬ 
cils, the legislative or the administrative. Associated with this 
officer, there is in some Cantons a District or county Council 
chosen by vote of the people. 

The Gemeinde, or Commune, enjoys in Switzerland a degree 
of freedom in self-direction which is possessed by similar local 
organs of government hardly anywhere else in Europe. It owns 
land as a separate corporation, has charge of the police of its 
area, of the relief of its poor, and of the administration of its 
schools, and acts in the direction of communal affairs through 
a primary assembly of all its freemen which strongly reminds 
one of the New-England town-meeting (page 241). Besides its 
activities as an organ of self-government in the direction of 
strictly local affairs, the Commune serves also as an organ of 
cantonal administration, as a subdivision of the District. Thus 
it is an electoral district, and a voting district in the case of a 
Referendum; and in so far as it is used as a district of the Canton 
it is subject to the supervision of the local authorities of the state. 

There is by no means a fixed and uniform organization in the 
local government of the Cantons. In most of the smaller Com¬ 
munes the people themselves act directly in affairs, in township 
meeting, while in the large cities a city council (Stadtrat) is 
elected by popular vote. In all the Communes, as in the Cantons, 
the executive power is vested in a board of officials, presided over 


THE GOVERNMENTS OE SWITZERLAND. 401 

by a Hauptmann , a Gemeindeamman, a Syndic, or a Maire. This 
communal or municipal council is chosen by the freemen in assem¬ 
bly or by direct popular election. The Hauptmann has often 
separate powers of his own, apart from and independent of his 
colleagues ; but in most matters he is merely the presiding officer 
of the administrative council, and executive action is collegiate. 

Citizenship in Switzerland is associated very closely with the 
Commune, — the immediate home-government of the citizen, — 
the primary and most vital organ of his self-direction in public 
affairs. The Commune is, so to say, the central political family in 
Switzerland ; it is to it that the primary duties of the citizen are 
owed. Every citizen of a Canton is by the Federal Constitution 
a Swiss citizen. Naturalization is regulated by cantonal law sub¬ 
ject only to approval by the Federal Council, upon the advice of 
its Political Department. The result has been the greatest di¬ 
versity of practices in regard to a matter of vital consequence to 
the whole state, and the full rights of citizenship can be conferred 
only by cantonal and communal law. 

The Federal Government. 

The Federal Executive. — In no feature of the federal 
organization is the influence of cantonal example more evident 
than in the collegiate character of the Executive. The executive 
power of the Confederation, like the executive power of each Can¬ 
ton, is vested not in a single person, as under monarchical or 
presidential government, but in a board of persons. Nor does 
Swiss jealousy of a too concentrated executive authority satisfy 
itself with thus putting that authority ‘ into commission ’: it also 
limits it by giving to the legislative branch of the government, 
both in the Cantons and in the federal system, an authority of 
correction as regards executive acts such as no other country has 
known. The share of the legislative branch in administrative 
affairs is smaller, indeed, under the Federal Constitution than 
under the laws of the Cantons; but it is large even in the federal 
system, and it seems inherent in Swiss political thought. 

The executive commission of the Confederation is known 
as the Federal Council ( Bundesrat ). It consists of seven mem- 


THE GOVERNMENTS OP SWITZERLAND. 


402 


bers elected for a term of three years by the two houses of the 
federal legislature acting together in joint session as a Federal 
Assembly (. Bundesversammlung ). The Constitution forbids the 
choice of two of its seven members from one and the same Can¬ 
ton: they must represent seven of the twenty-two Cantons. The 
Council is organized under a President and Vice-President chosen 
by the Federal Assembly, from among the seven councillors, to 
serve for a term of one year, the Constitution insisting upon the 
extreme democratic doctrine of rotation. Neither President nor 
Vice-President can fill the same office for two consecutive terms; 
nor can the President be immediately nominated to the office of 
Vice-President again upon the expiration of his term. There is 
nothing to prevent the Vice-President succeeding the President, 
however; and it has hitherto been the uniform practice to follow 
this natural and proper line of promotion. 

The Federal Assembly may elect to the Council any Swiss citizen 
who is eligible to either Chamber of the Legislature. As a matter of fact, 
however, they almost invariably make their choice from amongst the 
members of the Chambers, though an election to a place in the executive 
body necessitates a resignation of the legislative function. Bern and 
Zurich have always been represented in the Bundesrat, and are consid¬ 
ered to have acquired a sort of prescriptive right to places on it. Vaud 
has almost always had a member, too ; and Aargau was represented con¬ 
tinuously till 1891. 

The choice of the Federal Assembly in constituting the executive has 
hitherto been admirably conservative. Some of the more prominent 
members of the Council have been retained upon it by repeated reelection 
for fifteen or sixteen years ; one has served for thirty years ; and those 
who have left its membership have generally done so of their own accord, 
Only twice, indeed, since 1848, have members Who wished reelection been 
refused it. 

The Federal Assembly fills all vacancies in the membership of the 
Council, electing, however, only for the unexpired term. 

The three-years term of the Council is coincident with the three-years 
term of the National Council, the popular branch of the Legislature. At 
the beginning of each triennial term of this lower House, the two Houses 
come together as a Federal Assembly and elect (in practice reelect) the 
Federal Council. If the National Council be dissolved before the close of 
its three-years term, the election of the Bundesrat must be renewed by the 
two Houses upon the assembling of the new National Council. The Bun¬ 
desrat is thus not, strictly speaking, elected for three years, but for the 
term of the National Council, whatever that may turn out to be. 


THE GOVERNMENTS OF SWITZERLAND. 


403 


The precedence of the President of the Council is a merely 
formal precedence: he is in no sense the Chief Executive. He 
represents the Council in receiving the representatives of foreign 
powers; he enjoys a somewhat enhanced dignity, being addressed 
in diplomatic intercourse as ‘ His Excellency ’; and he receives a 
little larger salary than his colleagues receive; but he is in all 
practical matters merely the Council’s chairman. 

The Executive and the Legislature. — The members of the 
Federal Council, though they may not be at the same time mem' 
bers of either House of the Legislature, may attend the sessions 
of either House, may freely take part in debate, and may intro¬ 
duce proposals concerning subjects under consideration: may 
exercise most of the privileges of membership, except the right to 
vote. They are expected, indeed, to prepare and guide the busi¬ 
ness of the Houses, and every bill is submitted to them for an 
opinion before its passage. They thus to a certain extent occupy 
a position resembling that which a French or English ministry 
occupy ; but there is this all-important difference : the English or 
French ministers are subject to ‘ parliamentary responsibility,’ — 
must resign, that is, whenever any important measure which they 
favor is defeated; whereas the Swiss ministers are subject to no 
such responsibility. Defeat in the Legislature does not at all 
affect their tenure. They hold office for a term of years, not for 
a term of legislative success; and they are the servants of the 
Houses, not their leaders. They have habitually been chosen 
from both the chief parties in the Confederation, and since 1891 
a third political group has been represented among them. They 
are not expected to speak the same opinions even on the floor 
of the Houses. But they are expected to act in harmony in all 
business, and to mediate between extreme views in matters of 
deliberation. 

At the outbreak of the war in 1914 the Federal Assembly 
conferred by resolution unlimited power upon the Council “to 
take all measures necessary to the security, integrity, and neu¬ 
trality of Switzerland, and to protect the credit and economic 
interests of the country, especially including the assurance of its 
food supply. For this purpose the Federal Council shall possess 
unlimited credit to meet expenses. It is especially authorized 


404 


THE GOVERNMENTS OF SWITZERLAND. 


to conclude all necessary loans. The Federal Council shall ac¬ 
count to the Federal Assembly at its next session with regard to 
its employment of the unlimited powers hereby conferred upon 
it.” 1 It is doubtful if any permanent change in the relations be¬ 
tween the executive and the legislature will be produced by this 
emergency measure. The jealousy with which the two Houses 
have regarded the exercise of the powers thereby conferred 
would indicate a return to former conditions with the return 
of peace. 

The Executive Departments. — The Council acts as a body 
of Ministers. It was the purpose of the Constitution that all 
executive business should be handled by the Council as a whole, 
but of course such collegiate action has proved practically im¬ 
possible : it has been necessary to divide the work among seven 
Departments. Each member of the Council presides over a De¬ 
partment, conducting it much as an ordinary minister would under 
a Cabinet system, though there is a somewhat closer union of the 
several Departments than characterizes other systems, and a 
greater degree of control by the several ministers over such 
details of administration as the ‘ permanent ? subordinates of 
Cabinet ministers generally manage, by virtue of possession, to 
keep in their own hands, to the restraint and government of tran¬ 
sient political chiefs. All important decisions emanate from the 
Council as a whole; and, so far as is practicable, the collegiate 
action contemplated by the Constitution is adopted. 

The seven Departments are (1) Political, including Foreign Affairs, 
(2) Justice and Police, (3) Interior, (4) War, (5) Finance and Imposts, 
(6) National Economy, and (7) Posts and Railways. The department 
of Foreign Affairs is associated with the presidency. The arrangement of 
administrative business in Departments is effected in Switzerland, as in 
France and Germany, by executive decree, and not by legislative enact¬ 
ment, as in the United States. 

It is considered the capital defect of this collegiate organization of 
the Swiss executive, combined as it is with the somewhat antagonistic 
arrangement of a division of executive business among Departments, that 
it compels the members of the Council to exercise at one and the same 

i Bundessbeschluss of August 3, 1914, A. S. XXX, 347, quoted in Brooks, 
p. 114. 


THE GOVERNMENTS OF SWITZERLAND. 


405 


time two largely inconsistent functions. They are real, not simply nomi¬ 
nal, heads of Departments, and are obliged as such to give their time and 
attention to the routine, the detail, and the technical niceties of adminis¬ 
tration ; and yet as a body they are expected to impart to the administra¬ 
tion as a whole that uniformity, breadth, and flexibility of policy that can 
be imparted only by those who stand aloof from detail and routine and 
command the wider views of general expediency. They are called to be 
both technical officials and political guides. It has been suggested by 
thoughtful Swiss publicists that it would be vastly better to give the De¬ 
partments permanent heads and leave to a board of ministers such as the 
present Council only a general oversight. Political and administrative 
functions require different aptitudes, must be approached from very differ¬ 
ent points of view, and ought seldom to be united in the same persons. 

Mixed Functions of the Executive. — Swiss law, as I have 
said, makes no very careful distinction between executive, legis¬ 
lative, and judicial functions. Popular jealousy of executive 
power has resulted, alike in the cantonal systems and in the sys¬ 
tem of the Confederation, in the vesting of many executive func¬ 
tions either wholly or in part in the lawmaking bodies, and a 
very singular confusion between executive and judicial functions 
has resulted in the possession by both the executive and the legis¬ 
lative bodies of prerogatives which should, on any strict classifi¬ 
cation, belong only to regularly constituted courts of law. It is, 
consequently, somewhat difficult to get a clear summary view of 
the role played in Swiss federal affairs by the central executive 
Council. Its duties give it a touch both of legislative and of 
judicial quality. 

(1) It stands closely connected with the Legislature 
because of its part in shaping legislation’ The Council both origi¬ 
nates proposals in the Houses and gives its opinion upon pro¬ 
posals referred to it, either by the Houses or by the Cantons. It 
renders annual reports to the Houses concerning its conduct of 
administration and the condition of the Confederation, which give 
it opportunity to urge upon them necessary measures of reform or 
amelioration; and which, being freely debated, give the members 
of the Houses, also, an opportunity to press their own criticisms 
and suggestions with reference to the conduct of the administra¬ 
tion. It presents the budget of the Confederation also to the 
Houses and leads in its debates of financial legislation. It is, in 


406 


THE GOVERNMENTS OF SWITZERLAND. 


brief, the intimate servant and in part the authoritative guide of 
the Legislature, both taking and giving advice. The Houses may 
reverse whatever action of the Executive they please, even though 
it be merely administrative in character ; but they usually suggest, 
they do not often condemn action already taken. 

(2) In the exercise of several of its most important duties the 
action of the Council is essentially judicial. It is empowered to 
examine the agreements made by Cantons among themselves or 
with foreign governments and to judge of their conformity with 
federal constitutional law, withholding its approval at its dis¬ 
cretion. In like manner there are other cantonal laws and 
ordinances whose validity is made dependent upon its approval; 
and until 1893 to a very limited extent, a jurisdiction like that 
entrusted to the Federal Court in hearing complaints concerning 
breaches of federal law was given it. It has also authoritative 
oversight of the administration of federal law by the cantonal 
officials. There are not many federal officials ; federal law is for 
the most part executed by local officers, the Federal Council 
supervising. 

Here are some of the topics touching which the authoritative 
opinion of the Council may be taken : cantonal school affairs ; freedom of 
trade and commerce, and the interpretation of contracts with foreign 
states which concern trade and customs-levies, patent rights, rights of set¬ 
tlement, freedom from military service, free passage, etc.; rights of settle¬ 
ment within the Cantons ; freedom of belief ; validity of cantonal elections, 
votes, etc.; gratuitous equipment of the militia. 1 

(3) Its strictly executive functions are, however, its most 
prominent and important functions. It appoints all officers 
whose selection is not, otherwise specially provided for by law; 
it of course directs the whole executive action of the government, 
controlling federal finance, and caring for all federal interests; 
equally of course, it manages the foreign affairs of the Confedera¬ 
tion. Besides these usual executive and administrative functions, 
it exercises, however, others less common. It is the instru¬ 
ment of the Constitution in making good to the Cantons the 
federal guarantee of their constitutions. It executes the judg¬ 
ments of the Federal Court, and also all agreements or decisions 


THE GOVERNMENTS OF SWITZERLAND. 


407 


of arbitrators concerning matters in dispute between Cantons. 
In cases of necessity it may call out and itself direct the move¬ 
ments of such cantonal troops as are needed to meet any sudden 
danger, provided the Legislature is not in session to command such 
measures, and provided the call is for not more than two thousand 
men for a service of more than three weeks. If more men or 
longer service seem necessary, the Legislature must be called at 
once and its sanction obtained. This power of the Council to call 
out troops to meet a pressing peril of war or riotous disorder is a 
logical part of the duty imposed upon it of guarding the external 
and internal safety and order of the Confederation, a duty which 
embraces the general police function of keeping the peace. 

The Army. — Compulsory military service is required by the con¬ 
stitution of 1848 which at the same time forbade the federation to maintain 
a standing army. The consequence was that the Cantons were left in 
charge of military administration. The constitution of 1874 gave the 
federation a much enlarged control over the army, though the prohibition 
against the maintenance of a standing army was retained. The law of 
1907, passed upon referendum by a large popular vote, is the basis of the 
army organization. Liability to military service extends from the twen¬ 
tieth to the forty-eighth year, but the periods of service are short. 

Detail of Federal Supervision.—The federal government is 
directed by the Constitution to see to it that the Cantons provide free, 
compulsory, non-sectarian education for their people, and that the politi¬ 
cal rights and liberties of individuals are respected by cantonal law. It is 
likewise authorized, in case of internal disturbances, to intervene to pre¬ 
serve the public order upon its own initiative, whenever the cantonal 
authorities are unable to call upon it for assistance. It has been held, 
moreover, that it may exercise many of these extensive powers of over¬ 
sight and direction upon the initiative of individuals whose rights are 
affected, as well as upon the initiative of the cantonal governments ; and 
its powers of superintendence and intervention have shown a marked ten¬ 
dency to grow. The people have come to feel the Cantons in many things 
too small to do without the aid and countenance of the federal power. 

Execution of Federal Law. — Although the supervisory powers 
of the federal government are very great, however, its active administra¬ 
tive duties are not many. The federal laws are for the most part executed 
by cantonal officials, under the superintendence of the Federal Council. 
In all that concerns foreign affairs the federal government acts for itself 
and through its own officials ; it directly administers the custom house, too, 
and the postal and telegraph systems of the country. It has charge of its 
own arsenals ; and it is entrusted with the management of the government 


408 


THE GOVERNMENTS OF SWITZERLAND. 


alcohol monopoly and of the national polytechnic school. But in almost 
all other matters it is served by cantonal officials. Even the Federal 
Court has no executive officers of its own. 

Appeal in Judicial Cases. — Following the example of the 
cantonal constitutions, which provide for a very absolute depend¬ 
ence of the executive upon the representatives of the people and 
freely neglect, in practice, the careful differentiation of legislative 
from administrative functions, the Federal Constitution of 1848 
allowed an appeal in all cases from the Federal Council to the 
Federal Assembly ( Bundesversammlung ). The constitutional re¬ 
vision of 1874, which had as one of its chief objects the develop¬ 
ment and strengthening of the judiciary of the Confederation, 
transferred many appeals to a Federal Court, but it left the 
action of the Federal Council no less subject to the Assembly 
than before, and it did not exclude the Legislature from judicial 
functions. It was, indeed, provided that the Federal Court, 
rather than the Assembly, should in most cases hear appeals 
from the Federal Council; but it was also arranged that certain 
‘ administrative ’ cases might be reserved to the Assembly by 
special legislative action. Eeligious and 1 confessional ’ questions 
have, accordingly, been retained by the Legislature — questions 
which would seem to be as far as possible removed from the 
character of administrative matters. 

It seems to have been the conscious purpose of the more advanced 
reformers in 1874 to bring the Federal Court as near as possible in char¬ 
acter and functions to the Supreme Court of the United States ; but they 
were able to realize their purpose only in part. The most important pre¬ 
rogative of our own Court, its powers, namely, of constitutional interpre¬ 
tation, was denied the Federal Court in Switzerland. Most constitutional 
questions are decided by the Legislature, except when specially delegated 
to the Court by legislation. The chief questions of this nature now taken 
cognizance of by the Court are disputes as to constitutional rights between 
cantonal and federal authorities. 

The Federal Chancellor. — The office of Federal Chancellor is 
worth noting as an inheritance of the present from the older Confedera¬ 
tion, in whose days of incomplete federalization the Chancellor typified 
the unity of the Cantons. The Chancellor is elected by the Federal 
Assembly at the same time and for the same term (three years) as the 
Federal Council. He is chief clerk of both Houses of the Federal Assem¬ 
bly, is keeper of all the federal records, and exercises a semi-executive 


THE GOVERNMENTS OF SWITZERLAND. 


409 


function as preserver of diplomatic forms and usages. A Vice-Chancellor 
acts under the Chancellor as Secretary of the Council of States ( Stande - 
rat), the Chancellor acting chiefly for the popular chamber. 

The Federal Legislature. — Properly speaking, the legis¬ 
lative powers of the Confederation are vested in the Federal 
Assembly ( Bundesver&ammlung ) ; but that Assembly consists of 
two distinct Houses, the National Council ( Nationalrat) and the 
Council of States ( Stdnderat ); and the Houses act separately 
in all strictly legislative matters, coming together as a single 
Assembly only for the exercise of certain electoral and judicial 
functions. The two Houses stand in all respects upon an equal 
footing: there is no difference of function between them. The 
originative work of each session — that is, the first handling of 
measures — is divided between them by a conference of their 
Presidents at the beginning of the session. The Constitution 
requires that at least one session be held annually: as a matter 
of practice there are usually two sessions of about four weeks 
each every year, one beginning in June, the other in December, 
and a shorter extra session in March. Special sessions may be 
called either by resolution of the Federal Council or upon the 
demand of five Cantons or of one-fourth of the members of the 
National Council. An absolute majority of its paembers consti¬ 
tutes a quorum in each House. 

Composition of the Houses: I. The National Council. — 
The popular chamber of the Assembly consists of one hundred 
and eighty-nine members chosen from forty-nine federal electoral 
districts ( Wahl-Kreise) in the proportion of one representative 
for every 20,000 inhabitants. The federal electoral districts can¬ 
not, however, cross cantonal boundary lines and include territory 
in more than one Canton. If, therefore, in the apportionment of 
representatives among the Cantons, the division of the number 
of inhabitants of any Canton by the number 20,000 shows a 
balance of 10,000, or more, that balance counts as 20,000, and 
entitles to an additional representative. Keapportionments are 
made from time to time to meet changes in the number of 
inhabitants as shown by decennial censuses. If any Canton 
have less than 20,000 inhabitants, it is, nevertheless, entitled 
to a representativa 


410 


THE GOVERNMENTS OF SWITZERLAND. 


There are now six single-member Cantons. Bern has thirty-two repre¬ 
sentatives, and Zurich, twenty-five, and Vaud has sixteen. 

In those electoral districts which send more than one representative, 
candidates are voted for upon a general ticket, each voter being en¬ 
titled to vote for as many representatives as the district returns. It 
requires an absolute majority to elect, and if no one secures a majority 
at the first election, a second is held in which a plurality suffices. 

Every Swiss twenty years of age who is not a clergyman and who 
is qualified to vote by the law of his Canton may vote for mem¬ 
bers of the National Council. The term of the National Council 
is three years. Elections take place always in October, on the same 
day throughout the country, — and that day is always a Sunday. 

It is upon the assembling of each new National Council that the 
election of the Federal Council takes place (pages 402, 403). The three- 
years term of the ^executive Council is thus made to extend from the begin¬ 
ning of the first session of one National Council to the beginning of the 
first session of the next. 

The National Council elects its own officers; but in selecting its 
President and Vice-President it is bound by a rule similar to that which 
limits the yearly choice of a President of the Confederation. The Presi¬ 
dent or Vice-President of one session cannot be reelected for the session 
next following. For the officers of the National Assembly, like the officers 
of most European law-making bodies, are elected eveiy session instead of 
for the whole term of the body, as in our House of Representatives and 
the English House of Commons. 

II. The Council of States ( Stdnderat ) is composed of 
forty-four members: two from each of the twenty-two Cantons. 
It would thus seem to resemble very closely in its composition 
our own federal Senate and to represent distinctively the federal 
feature of the union between the Cantons. In fact, however, it 
has no such clearly defined character: for the mode in which its 
members shall be elected, the qualifications which they shall 
possess, the length of time which they shall serve, the salary 
which they shall receive, and the relations they shall bear to 
those whom they represent, in brief, every element of their 
character as representatives, is left to the determination of the 
Cantons themselves, and the greatest variety of provisions con¬ 
sequently prevails. Erom some Cantons the members are sent 
for one year only ; by some for three; by others for four ; by still 
others for two. In most of the Cantons they are elected by 


THE GOVERNMENTS OF SWITZERLAND. 


411 


popular vote, as the members of the National Council are; in 
seven Cantons they are elected by the legislative body of the 
Canton. 1 Differing, thus, from the National Council, as regards 
at least very many of its members, only in the fact that every 
Canton sends the same number as each of the others and chooses 
the term for which they shall be elected, the Council of States can 
hardly be called the federal chamber : neither is it merely a second 
chamber. Its position is anomalous and obviously transitional. 

694. The Council of States elects its own President and Vice-President, 
but subject to the restriction that neither President nor Vice-President 
can be chosen at any session from the Canton from which the President 
for the immediately preceding session was taken, and that the office of 
Vice-President cannot be filled during two successive regular sessions by 
a member from the same Canton. 

695. The Cantons, upon enumeration, number, not twenty-two, but 
twenty-five, because three of them have been divided into ‘ half-cantons,’ 
namely, Unterwalden, Basel, and Appenzell. The half-cantons send each 
one member to the Council of States. The following is a list of the Can¬ 
tons : Zurich, Berne, Luzern, Uri, Schwyz, Obwalden, Nidwalden, Glarus, 
Zug, Freiburg, Solothurn, Baselstadt, Baseband, Schauffhausen, Outer 
Appenzell, Inner Appenzell, St. Gallen, Graubiinden, Aargau, Thurgau, 
Ticino, Vaud, Valais, Neuch&tel, Geneva. 

696. Functions of the Houses. — It may be said, in general 
terms, that its Legislature is the supreme, the directing organ of 
the Confederation. It is difficult, therefore, to classify the func¬ 
tions which the Houses exercise, because they extend into every 
field of government; but the following may serve as a distinct 
arrangement of them: 1. They exercise the sovereignty of the 
Confederation in its dealings with foreign states, controlling all 
alliances or treaties with foreign powers, determining questions 
of peace and war, passing all enactments concerning the federal 
army, and taking the necessary measures for maintaining the 
neutrality and external safety of Switzerland. 2. They maintain 
the authority of the Confederation as against the Cantons, taking 
care to pass all the measures necessary for preserving internal 
safety and order and for fulfilling the federal guarantee of the 
cantonal constitutions, and deciding, upon appeal from the Fed- 

i They are Bern, Freiburg, St. Gallen, Aargau, Vaud, Valais, and Neu- 
chatel. 


412 


THE GOVERNMENTS OF SWITZERLAND. 


eral Council, the validity of agreements between the Cantons oi 
between a Canton and a foreign power. 3. They exercise the 
general legislative powers of the Confederation, providing for 
the carrying out of the Federal Constitution and for the fulfil¬ 
ment of all federal obligations. 4. They pass upon the federal 
budget and control the federal finances. 5. They organize the 
federal service, providing for the creation of all necessary depart¬ 
ments or offices and for the appointment and pay of all federal 
officers. 6. They oversee federal administrative and judicial 
action, hearing and acting upon complaints against the deci¬ 
sions of the Federal Council in contested administrative cases. 
7. With the concurrence of the people, they revise the Federal 
Constitution. 

Legislative Procedure.— Each House is served in the conduct 
of its business by a President, a Vice-President, and four Tellers. These 
six officers constitute a ‘Bureau,’ whose duty it is not only to count the 
votes upon a division, but also to look after absentees, and to appoint such 
committees as the chambers do not themselves choose to elect. Much of 
the business introduced is referred to. committees for detailed considera¬ 
tion ; but the Federal Council is the grand committee. All important 
legislation either comes from it or goes to it for final formulation, and its 
part is generally a guiding part in debate. 

Revision of the Constitution. — When the two Houses can 
agree concerning a revision of the Constitution, it is effected by 
the ordinary processes and under the ordinary rules of legislation, 
though it is followed by an obligatory Referendum to the people. 
But a revision may also be otherwise accomplished. If one 
House demands particular changes and the other House refuses 
to assent, or if 50,000 qualified voters call for a revision by peti¬ 
tion, the question whether or not a revision shall be undertaken 
must be submitted to popular vote; and if there be a majority of 
the whole of such popular vote in the affirmative, new Houses 
must be elected and the revision proceeded with. In every case 
the amendments adopted by the Houses must be voted upon by 
the people and must be accepted by a majority of the people and 
by a majority of the Cantons also in order to go into force. In 
reckoning up the votes by Cantons, on such occasions, the vote 
of a half-canton counts as half a vote. 


THE GOVERNMENTS OF SWITZERLAND. 


413 


The Federal Referendum. — “ Federal laws, as well as 
generally binding federal resolutions, which are not of a pressing 
nature, shall be laid before the people for their acceptance or 
rejection upon the demand of 30,000 qualified Swiss citizens or 
of eight cantons.” Such is the command of Article 89 of the 
Federal Constitution which establishes for the Confederation the 
‘ facultative ’ or ‘optional ’ Referendum (page 398). 

The whole detail of the exercise of the Referendum is regulated 
by federal legislation. A period of ninety days, running from the date of 
the publication of the law, is set within which the demand for a popular 
vote must be made. Copies of all federal laws which are subject to Ref¬ 
erendum are sent to the authorities of each Canton, and by them pub¬ 
lished in the Communes. For the Communes are constituted the districts 
in which the popular demand is to be made up. That demand must 
be made by written petition addressed to the Federal Council; all signa¬ 
tures must be autographic ; and the chief officer of the Commune must 
attest the right of each signer to vote. Demands from Cantons for the 
Referendum are made through the cantonal councils, subject to the right 
of the people, under the provisions of the cantonal Referendum , to reverse 
the action. In case it appears that 30,000 voters or eight Cantons demand 
Referendum, the Federal Council must set a day for the popular vote ; 
a day which must be at least four weeks later than the resolution which 
appoints it. 

Functions of the Federal Assembly. — The functions which 
the Houses exercise in joint session, as the Federal Assembly, are 
not legislative but electoral and judicial. 1. The Assembly elects 
the Federal Council, the federal judges, the Chancellor, and the 
generals of the federal army. 2. It exercises the right of pardon. 
3. It determines conflicts of jurisdiction between federal au¬ 
thorities. 

The President of the National Council presides over the sessions 
of the Federal Assembly, and the rules of the National Council 
for the most part govern its proceedings. 

Administration of Justice: I. The Cantonal Courts. — 
The Cantons are left quite free by the Federal Constitution to 
organize their courts as they please. Not even a general uni¬ 
formity of system is prescribed ; nor are the cantonal courts sub¬ 
ordinated to the Federal Court except in certain special cases 
provided for by statute. It may be said, in general terms, that 


414 


THE GOVERNMENTS OF SWITZERLAND. 


justice is administered by the Cantons, with recourse in selected 
cases to the tribunal of the Confederation. 

There is, however, a certain amount of uniformity in judicial 
organization throughout Switzerland. There are usually two 
ranks of courts in each Canton: District Courts ( Bezirksgerichte 
or Amtsgerichte) which are courts of first instance, and a supreme 
Cantonal Court ( Kantonsgericht ) which is the court of final in¬ 
stance. There are also everywhere Justices of the Peace whose 
duty it is, in many places, first to act as mediators in legal dis¬ 
putes,— and as magistrates only when they fail as mediators. 
Petty police cases are heard by the District Courts ; but for the 
hearing of criminal cases there is trial by jury under the presi¬ 
dency of a section of the supreme court justices, or by a special 
criminal court acting without a jury. 

In some of the larger Cantons, there are special Cassation 
Courts formed by a division of the Cantonal Court. Special 
Commercial Courts (Hanclelsgerichte), and industrial courts 
(Gewerbegerichte) have been established in industrial districts. 

In many of the Cantons the Supreme Court exercises cer¬ 
tain semi-executive functions, taking the place of a Ministry 
of Justice, in overseeing the action of the lower courts and of all 
judicial officers, such as the states-attorneys. 

In most of the Cantons, too, the Supreme Court makes an¬ 
nual reports to the legislative Council, containing a full review 
of the judicial business of each year, discussing the state of 
justice, with criticisms upon the system in vogue and suggestions 
of reform. These reports are important sources of judicial 
statistics. 

The terms of cantonal judges vary. The usual terms are 
three, four, and six years. The judges of the inferior courts are 
as a rule elected directly by the people: those of the supreme 
courts commonly by the legislative Council. 

No qualifications for election to the bench are required by 
Swiss law except only the right to vote. But here, as well as 
in regard to the very brief terms of the judges, practice is more 
conservative than the law. To the higher courts, at least, com¬ 
petent lawyers are generally elected ; and reelection is in most 
cases the rule. 


THE GOVERNMENTS OF SWITZERLAND. 


416 


In Geneva the States-attorney, instead of the Supreme Court, is 
given the general duties of superintendence which, outside of Switzerland, 
are vested in a Minister of Justice ; and in other Cantons similar officers 
are given prerogatives much more extensive than are usually associated 
with such offices elsewhere. 

II. The Federal Court. —The Federal Court was created 
by the Constitution of 1848. Before that time arbitration had 
been the only form of adjudication between the Cantons. Even 
in creating it, however, the Constitution of 1848 withheld from 
the Federal Court all real efficiency: its jurisdiction was of the 
most restricted kind and was condemned to be exercised under 
the active superintendence of the omnipotent Federal Assembly. 
It was one of the chief services of the constitutional reform of 
1874 that it elevated the Federal Court to a place of substantial 
influence and real dignity. It still rests with the Houses to de¬ 
termine by statute many of the particular questions which shall 
be submitted to the Court; but its general province, as well as 
its organization, is prescribed, in considerable detail by the Con¬ 
stitution. 

The Federal Court consists of twenty-four judges chosen by 
the Federal Assembly (with due regard to the representation of 
the three official languages of Switzerland, — German, French, and 
Italian) for a term of six years. Every two years, also, the Fed¬ 
eral Assembly selects two of these twenty-four to act, the one as 
President, the other as Vice-President, of the Court. The Court 
sits, not at Berne, the legislative capital of the Confederation, but 
at Lausanne. 

The Federal Assembly elects, at the same time that it chooses 
the judges, nine substitutes also, who sit, as occasion demands, 
in place of any judge who cannot act, and who receive for their 
occasional services a per diem compensation. 

The members of the Court may not hold any other office or 
follow any other business during their term as judges; nor can 
they be members of any business corporation. 

Criminal Jurisdiction of the Federal Court. — In the exercise 
of its criminal jurisdiction the Federal Court goes on circuit. 

The country is divided into three assize districts (Assisen- 
bezirke), one of which embraces French- and Italian-speaking 
Switzerland; the other two, German-speaking Switzerland. 


416 


THE GOVERNMENTS OF SWITZERLAND. 


The Court annually divides itself, for criminal business, into 
four bodies: A Criminal Chamber, the Federal Penal Court, 
a Chamber of Complaints, and a Chamber of Appeals. The Crim¬ 
inal Chamber decides at what places in the several Districts assizes 
shall be held. The places selected furnish, at their own cost, a 
place of meeting. The cantonal police and court officers serve as 
officers of this Court. A States-attorney appears for the Federal 
Council in all cases. 

Cases in Public Law. — The jurisdiction of the Federal 
Court covers a great variety of causes. There are (1) Cases in 
Public Law. These include disputes between Cantons concern¬ 
ing such matters as the fulfilment of inter-cantonal agreements, 
she settlement of boundary lines, conflicts of jurisdiction between 
the authorities of different Cantons, and extradition; also the 
enforcement of agreements between Cantons and foreign govern¬ 
ments ; and, most fertile of all, cases involving the constitutional 
rights of citizens, whether those rights rest upon the federal or 
upon a cantonal constitution. Its jurisdiction does not, however, 
cover questions as to the constitutionality of federal legislation. 
The federal Houses are the sole judges, under public opinion, of 
their own powers. 

It is considered “the proper and natural province of the Federal 
Court” in Switzerland “to defend the people and the citizens against 
abuses of power, whether they proceed from federal or cantonal authori¬ 
ties.” Such a province is, however, in the very nature of the case, insus¬ 
ceptible of definite limitations ; and the powers of the Federal Court have 
gradually spread far abroad by reason of the temptations of this vague 
prerogative. The most usual and proper cases arising under it are in¬ 
fringements of the federal guarantee to citizens of equality before the 
law, of freedom of settlement, of security against double taxation, of 
liberty of the press, etc., but the Court has gone much beyond these. Its 
jurisdiction has been extended to the hearing of complaints against can¬ 
tonal authorities for ordinary alleged failures of justice, such as the Consti¬ 
tution can hardly have contemplated giving into the hands of the Federal 
Court. The Court has even “brought within the circle of its judgments 
cases where the appellant asserts a denial of his claims by a cantonal 
judge grounded upon merely obstructive motives or an arbitrary applica¬ 
tion of the law.” 1 


Orelli, p. 42. 


THE GOVERNMENTS OF SWITZERLAND. 


417 


The Federal Court has also cognizance of contested citizenship 
cases between Communes of different Cantons. For citizenship 
in Switzerland is first of all of the Commune. The Commune is, 
so to say, the unit of citizenship, and it is through communal 
citizenship that cantonal citizenship is held (p. 401). 

(2) Civil Cases in Private Law. — The administration 
of justice between individuals under federal laws is left for the 
most part to the cantonal courts, which thus serve in a sense as 
federal tribunals ; but if, in any case falling under federal law, a 
sum of 3000 francs be involved, or if the matter involved be not 
susceptible of money valuation, an appeal may be taken to the 
Federal Court from the court of last resort in the Canton. Cer¬ 
tain other private law cases, even when they do not involve fed¬ 
eral law, may be brought, — not by appeal, but in the first 
instance, — before the Federal Court upon another principle, 
because, i.e., of the nature of the parties to the suit, viz.: 
Cases between Cantons and private individuals or corporations; 
cases in which the Confederation is defendant; cases between 
Cantons; and cases between the Confederation and one or more 
Cantons. 

Cases of the first two of these four classes can he brought in the 
Federal Court only if they involve a sum of 3000 francs. Otherwise they 
must be instituted and adjudged in the cantonal Courts. 

By agreement of both parties, the jurisdiction of the Federal Court 
may be invoked in any case in which the subject of litigation is rendered 
important by virtue of federal legislation. 

A special railroad jurisdiction, too, has been given by statute to 
the Federal Court, covering cases concerning right of way and the right 
of eminent domain, and cases in private law between railroads and the 
Confederation. 

(3) Criminal Cases. — The criminal jurisdiction of the 
Federal Court covers cases of high treason and of outbreak or 
violence against the federal authorities, breaches of international 
law, and political offences which were the cause or the result of 
disorders which have necessitated the intervention of the Con¬ 
federation. It may, however, in the discretion of certain authori¬ 
ties, include a variety of other matters in addition to these. 
Federal officers, whose breaches of duty are ordinarily punished 


418 


THE GOVERNMENTS OF SWITZERLAND. 


upon judgment of the cantonal tribunals, may, by resolution of 
the Federal Council or of the Federal Assembly, be handed over 
to the Federal Court to be judged. Cases may even, also, be as¬ 
signed to the federal tribunal by cantonal constitutions or laws, 
if the Federal Assembly assent to the arrangement. 

The Chamber of Appeals of the Federal Court takes cognizance, besides, 
of complaints concerning judgments of the cantonal courts given under 
certain fiscal, police, and banking laws of the Confederation. 

By amendments to the constitution adopted in 1898, the feder¬ 
ation was expressly authorized to deal with all matters of civil 
and criminal law. To carry out this power and bring about 
uniformity a civil code was drafted and put into operation by the 
Federal Assembly on January 1, 1912. A similar codification of 
the criminal law is in process. 

The Federal Council : (4) Administrative Cases. — The 
administrative jurisdiction of the Confederation, which is exer¬ 
cised, not by the Federal Court, but by the Federal Council, 
includes a great number of important cases. It covers questions 
touching the calling out of the cantonal militia, the administra¬ 
tion of the public-school system of the Cantons, freedom of trade, 
occupation and settlement, consumption taxes and import duties, 
freedom of belief and worship, the validity of cantonal elections 
and votes, and rights arising out of contracts with foreign powers 
regarding trade relations, the credit to be given to patents, ex¬ 
emption from military service, freedom of passage, etc. In all 
these cases an appeal lies from the Federal Council either to the 
Houses or to the Federal Court. 

In 1914 an amendment to the Constitution was adopted, pro¬ 
viding for the establishment of an administrative court to exer¬ 
cise such jurisdiction in administrative cases as the Federal 
Assembly may confer upon it. 

Inter-Cantonal Judicial Comity. — The Swiss Constitu¬ 
tion, in close imitation of the provision on the same subject in 
the Constitution of the United States, requires that full force and 
credit be given the judgments of the courts of each Canton 
throughout the Confederation. 


THE GOVERNMENTS OF SWITZERLAND. 


419 


Some Representative Authorities. 

Adams , Sir F. O., and Cunningham , C. D., The Swiss Confederation. 
8vo, London and N.Y., 1889. 

Blumer , J. J., Handbuch des schweizerischen Bundesstaatsrechts, 2 vols., 
1863-1865; New ed. completed by J. Morel , 1887. 

Bluntschli , J. C., Geschichte des schweizerischen Bundesrechts von den 
ersten ewigen Biinden bis auf die Gegenwart, 2 vols., 1849-1852; 
2d ed., Vol. I., 1875. 

Borgeaud , Chas., Adoption and Amendment of Constitutions in Europe 
and America. Trans, by C. D. Hazen and J. M. Vincent. New York 
and London, 1895. Pp. 250 ff. 

Brooks , R. C., Government and Politics of Switzerland, N.Y., 1918. Ex¬ 
cellent and has critical bibliography. 

Burakhai'dt, W., Kommentar der Schweizerischen Bundesverfassung, 
Bern, 2 ed., 1914. 

Coolidge , Early History of the Referendum, in the English Historical Re¬ 
view, 1891, p. 674. 

Curd, Th., Le Referendum ; histoire de la legislation populaire en Suisse, 
Paris, 1915. 

Demornbynes, G., Les Constitutions Europ^nnes, Ed. 1883, Vol. II., pp 
304 ff. 

Deploige, S., Le Referendum en Suisse, Brussels, 1893. 

Dodd, IV. E., Modern Constitutions, 2 vols., Chicago, 1909. 

Droz, Numa, Etudes et portraits politiques. 

Dubs,. J., Das offentliche Recht der schweizerischen Eidgenossenschaft, 
2d ed., ZUrich, 1878. 

Dupriez, L., Les Ministres dans les principaux pays d’Europe et d’Ame- 
rique, 2 vols., Paris, 1892. Vol. II., pp. 167 ff. 

Hilty, C., Die Bundesverfassung der schweizerischen Eidgenossenschaft, 
Bern, 1891. 

Lowell, A. L., Governments and Parties in Continental Europe, 2 vols., 
Boston, 1896. Chaps. XI.-XIII. 

Macy, Jesse and Gannaway, Comparative Free Government, N.Y., 1915. 

Moses, Bernard, The Federal Government of Switzerland, An Essay on 
the Constitution. A comparative study. San Francisco, 1889. 

Ogg, F. A., The Government of Europe, N.Y., 1913. 

Orelli, Alois von, Das Staatsrecht der schweizerischen Eidgenossenschaft 
(in Marquardsen’s Handbuch des oifentlichen Rechts), Freiburg im 
B., 1885. 

Rambert, Eugene, fetudes historiques et nationales, — Les Alpes Suisses, 
1889. 


420 


THE GOVERNMENTS OF SWITZERLAND. 


Richman, Irving B., Appenzell, Pure Democracy and Pastoral Life in 
Inner Rhoden. A Swiss Study. London and N.Y., 1895. 

Snell, Ludwig, Handbuch des schweizerischen Staatsrechts, 2 vols., Ziirich, 
1837-1845. Contains a great deal of original material for the period 
preceding the formation of the present federal government. 

Stussi, Referendum und Initiative in den Sweizerkantonen, Ziirich, 1893. 
Vincent , J. M., Government in Switzerland. N.Y., 1900. 

Winchester, Boyd, The Swiss Republic, Philadelphia and London, 1891. 


XI. 


THE GOVERNMENT OF ITALY. 

The Empire. — The overthrow of the Roman Empire by the 
barbarian tribes in the fifth century did not destroy the tradition 
of supremacy associated with the name of Rome, any more than 
it destroyed Roman law and civilization. As the latter survived 
and profoundly modified the civilization imposed upon it, so 
Rome survived as the traditional mistress of the world and be¬ 
came again under the Frankish kings, in name at least, the head 
of a new Empire, that of Charlemagne and his successors. The 
imperial tradition thus revived and centered in Rome had a pro¬ 
found influence upon subsequent Italian history and had much to 
do with the late realization of Italian unity. While other na¬ 
tions, as France, England, and Spain, were developing into the 
modern national states, unified under their own national kings, 
Italy was ruled for the most part by foreigners; in the first in¬ 
stance by the Emperors of the Holy Roman Empire, who were 
German, and at a later date by these German Emperors and by 
the French and Spanish who established claims to various parts 
of the peninsula. 

The Church. — Throughout all this period the Church was 
a temporal power, at times rivalling in influence the Emperor and 
always supreme in the States of the Church, a territory stretch¬ 
ing across central Italy from northeast to southwest and for cen¬ 
turies forming a competing temporal power. 

The City Republics. — In the later Middle Ages there grew 
up, particularly in northern Italy, great free city Republics, such 
as Genoa, Florence, Pisa, Milan, and Venice — and for a brief mo¬ 
ment, Rome itself. These city Republics felt the full force of 

421 


422 


THE GOVERNMENT OF ITALY. 


the Eenaissance and its awakening spirit, and for a space played 
a great part in the history of the world. In time they lost their 
republican character for the most part and sank into subjection 
or obscurity, but left behind them a strong republican tradition. 

Napoleon. —At the end of the eighteenth century Italy 
remained but a geographical designation for a great number of 
petty kingdoms and principalities, most of them under the con¬ 
trol of foreign princes. Napoleon, with the conqueror’s ruthless¬ 
ness, swept them all away and established the Kingdom of Italy. 
Brief as was the existence of this artificial union, it nevertheless 
left its impression of a united Italy— an impression which added 
strength to the growing sentiment in favor of national unity. 

But Napoleon’s Kingdom of Italy had been preceded by the 
establishment of a number of Republics in northern Italy when 
he was still the leader of nominally republican France. They 
were Republics created out of hand by the conqueror and were as 
readily dissolved by the same hand, yet they revived the medi¬ 
eval tradition of the city Republics and gave expression to the 
awakening spirit of the people. Thus Napoleon contributed to 
the development of the aspiration both for national union and for 
a republican form of government. 

Congress of Vienna. —-At the Congress of Vienna, the 
former condition of Italy was in large measure reestablished — 
everywhere were small kingdoms and principalities under rulers 
whose powers were nowhere limited by constitutional restraints 
and many of whom were tyrannical. Foreign influence was 
again reestablished. But the democratic spirit engendered by the 
French Revolution was very much alive and led to the organiza¬ 
tion of secret societies whose object was the establishment of a 
united Italy under a republican form of government. 

House of Savoy. — In the northwestern part of the penin¬ 
sula, stretching from the mountains to the sea, was the Kingdom 
of Sardinia, under the rule of the House of Savoy, which was des¬ 
tined to become the leader in the unification of Italy, but as a 
kingdom and not as a republic. In response to the Revolutionary 
movement of 1848, Charles Albert, its king, granted to his people 
a constitution, called the Statute, and in 1848-49 he sought to 
free Italy from the oppression of Austria. Though defeated and 


THE GOVERNMENT OF ITALY. 


423 


compelled to abdicate in favor of bis son, Victor Emmanuel, be 
had centered the thought of the Italians upon the House of Savoy 
as the possible liberators of Italy. Despite the threats of Austria, 
Victor Emmanuel refused to repeal the Statuto. 

The four principal figures in the struggle for Italian unity 
were Mazzini, the revolutionary enthusiast; the King, Victor 
Emmanuel; Cavour, his great minister; and Garibaldi, the dash¬ 
ing soldier of fortune. Mazzini’s part was played in the earlier 
years in filling the place of high minded advocate of liberty, in 
stirring the spirit of freedom throughout Italy, and in conspiring 
to secure its realization. The king formed the rallying point about 
which the sentiment in favor of unification could gather, and the 
high place which he held in the respect and admiration of the 
people contributed much to the willingness of the republicans to 
yield their preference and accept a monarchy. Cavour was a 
truly great statesman who realized that the Austrian power must 
be driven out before Italy could be united. Accordingly he in¬ 
duced Napoleon III. to declare war on Austria in 1859, in con¬ 
junction with Sardinia. The full success of the war was lost by 
the sudden withdrawal of Napoleon, leaving Venice still in the 
hands of Austria. Garibaldi fired the imagination of the people, 
and his successful operations in overrunning Sicily and in driving 
out the rulers of Naples occurred at a most opportune time. 

Cavour’s original pjan had been for a federation of the Italian 
states under the nominal headship of the Pope, but with the real 
leadership in the King of Sardinia. With the conclusion of the 
war against Austria, leaving Venice in her hands, he concluded 
that the only solution lay in unification under the House of Savoy. 
The northern states had risen in 1860 and driven out their rulers ; 
they now voted for union with Sardinia. Sicily and Naples, freed 
by Garibaldi, likewise decided by popular vote to join the new 
kingdom. With the exception of Venice, held by Austria, and 
home, held by French troops, the rest of Italy soon followed. 

Venice was not added to the new Kingdom of Italy till 1866, 
when Italy joined Prussia in the war against Austria; but Italy 
failed then to acquire two districts, preponderantly Italian in 
population and sympathy— the Trentino, a mountain district, 
and Italia Irredenta, that part of the Adriatic sea coast adjoining 


m 


THE GOVERNMENT OF ITALY. 


Venice, of which Trieste is the most important city. Both of 
these districts will have been added to Italy as a result of the Great 
War, 1914-1918. Rome was acquired in 1870 at the time of the 
Franco-Prussian war, when Italian soldiers took possession of the 
city and Rome became the capital of a united Kingdom of Italy. 
Thereby the last remnant of the temporal power of the Pope was 
destroyed. 

The Statuto. — The Statuto granted by Charles Albert in 
1848 remains to-day the constitution of Italy — not the whole 
constitution, for both custom and enactment have greatly modified 
the original instrument, but it is still the principal source of gov¬ 
ernmental arrangements. As the Kingdom of Sardinia expanded 
into the Kingdom of Italy the Statuto was extended to the new 
territories. The Statuto contained no provision for its amend¬ 
ment, and the custom that the constitution may be amended by 
an ordinary act of Parliament has become so firmly established as 
to be regarded as a part of the constitution. 

The eighty-four articles of the constitution deal with the 
rights and duties of citizens, the Crown, the Ministers, the Sen¬ 
ate, the Chamber of Deputies, and the Judiciary. All inhabitants 
are guaranteed equality before the law; liberty of person; free¬ 
dom of the press and of assembly, though the latter is subject 
to qualifications; inviolability of property and of domicile; and 
exemption from taxation not authorized by Parliament. 

The King. — According to the Statuto the form of govern¬ 
ment is a “ representative monarchical government,” with an 
hereditary king who succeeds under the Salic law, that is, only 
by and through the male line. The executive power is vested in 
the King, who approves and promulgates the laws, concludes 
treaties, declares war, appoints all officers of state, makes decrees 
and ordinances, creates Senators, and commands the military and 
naval forces. These powers, though vested in the King, are not 
exercised by him but by ministers responsible to the Chamber of 
Deputies. No act of the king is valid unless countersigned by 
one of his ministers, and this fact is the legal foundation for the 
responsibility of the ministers to the Chamber of Deputies. 

The actual powers exercised by the King are slight, and no at¬ 
tempt has been made by any one of the three kings to be other 


THE GOVERNMENT OF ITALY. 


425 


than a constitutional monarch, but each has recognized whole¬ 
heartedly that the actual government is carried on by the minis¬ 
ters under responsibility to the popular house of Parliament. 
The “ representative” function of the King is not without im¬ 
portance ; his opinions in matters of foreign relations have much 
weight and at times of cabinet crises, when the ministry resigns 
the King may exercise a certain amount of choice with respect to 
the man who shall be selected to form a new cabinet and in doing 
so may exert some influence upon the course of government. 

The Ministry. — As in other countries with responsible 
cabinet government, the ministers are both political leaders and 
heads of the administrative department. Of the latter there are 
at present thirteen, which are as follows: Foreign Affairs; War; 
Marine ; the Interior; Finance; the Treasury; Public Instruction; 
Public Works; Justice and Ecclesiastical Affairs; Commerce, 
Industry, and Agriculture; Posts and Telegraphs; Colonies; and 
Kail ways and Merchant Marine. 

In the exercise of their functions as political leaders, the min¬ 
isters, who are members either of the Senate or of the Chamber 
of Deputies, have a right to appear upon the floor and to speak in 
both houses, though their right to vote is confined to the house of 
which they are members. The king may appoint to the post of 
minister one who is not a member of Parliament, but such a min¬ 
ister must be appointed a member of the Senate or stand for 
election to the Chamber at the first vacancy. Also there have 
been ministers without portfolio. The premier has generally 
held the post of Minister of the Interior. 

As the head of the government, responsible to the Chamber, 
the cabinet takes the initiative in legislation, though private 
members may introduce bills; but by reason of the multiplicity 
of parties, cabinets have usually been lacking in internal unity and 
in the power of controlling the Chamber, with the result that it is 
difficult for a cabinet to inaugurate and put through an extended 
programme and that ministries change with frequency. 

The Senate. — The Italian Senate is unlike any other sec¬ 
ond chamber in its composition. Its membership is unlimited in 
number (395 in 1916), and aside from the royal princes, of whom 
there are six, its members are appointed by the king for life from 


426 


THE GOVERNMENT OF ITALY. 


certain classes of the people as defined in the Statuto. Generally 
these classes may be said to comprise high state officials, — church 
officials also are eligible but since the break with the Vatican in 
1870 none have been appointed, — persons of fame in science or 
literature or who have performed a distinguished service for the 
state, and persons who pay over 3000 lire ($600) in taxes. Ap¬ 
pointment by the king means of course appointment by the 
ministry in power, but the Senate has a right to decide whether 
or not the proposed appointee comes from one of the recognized 
classes and in a number of instances it has decided that the re¬ 
quirements had not been met and in consequence the appointment 
failed. Members must not be less than forty years of age. The 
president and vice-president are designated by the crown. The 
power of appointment has been exercised on several occasions for 
the purely political purpose of changing the opinion of the body, 
as many as seventy-five senators being appointed at one time in 
1890, and through this power the equality of the Senate with the 
chamber has been destroyed. 

Legally the Senate has an equal voice with the Chamber in law¬ 
making, and no bill can become a law without its consent, but its 
consent can be forced by the method of appointment. The Senate 
lacks popular character and cannot stand against the Chamber. 
Ministers are responsible to the Chamber and not to the Senate 
and those cases in which opposition in the Senate has led to the 
resignation of a ministry may be regarded as accidental. 

The Senate may act as a High Court for the trial of ministers 
impeached by the Chamber and to try cases of high treason and 
attempts upon the safety of the state. 

The Chamber of Deputies. — The popular house of the 
Italian Parliament is elected on the basis of universal manhood 
suffrage, except that those under thirty years of age who have 
neither performed military service nor learned to read and write 
are excluded. In the earlier years of the Kingdom the electorate 
was narrowly limited, due to the backward condition of the country 
and to the large proportion of illiterates. With the establish¬ 
ment of better school facilities, and with the economic and com¬ 
mercial development of the country, the suffrage has been ex¬ 
tended until by the Electoral Law of 1912 universal manhood 


THE GOVERNMENT OF ITALY. 


427 


suffrage was all but reached. There is still a large ignorant and 
illiterate population but no bad effects therefrom have as yet 
made themselves felt in serious fashion; and universal manhood 
suffrage is in keeping with the democratic spirit of the people. 

The Chamber is composed of 508 members, or one to each 
71,000 inhabitants, elected each from a district. Originally the 
deputies were elected from separate districts but in 1882 the 
scrutina di lista, or the election of a number of deputies from a 
single district, was introduced. It was hoped that the new sys¬ 
tem would lead to the choice of deputies having more of a national 
and less of a local point of view, but the experiment did not prove 
a success and was abandoned in 1891 and the former system was 
reestablished. A candidate in order to be elected must receive 
the votes of more than one-tenth of the inscribed electors and 
more than one-half of the votes cast. If no candidate secures the 
necessary number of votes, a second election is held a week later. 

Qualifications of Members. — Members of the Chamber 
must be citizens, at least thirty years of age, and in possession of 
full civil and political rights. It is not necessary that a member 
should reside in the district which he represents. Priests, salaried 
government officials, except the officers of the army and navy, 
ministers and under-secretaries, and a few other high officials and 
all persons receiving stipends from the state are ineligible. Of 
those government officials who are eligible there can never be 
more than forty who are members at the same time, but ministers 
and under-secretaries are not counted in the forty. Deputies are 
elected for a period of five years, which is the maximum period for 
the duration of Parliament, but they seldom fill out the term be¬ 
cause of the earlier dissolution of Parliament. 

The members receive 2000 lire ($400) to cover the cost of cor¬ 
respondence and 4000 lire a year if not in receipt of an income 
from a public source. Those who are in receipt of a public in¬ 
come receive the difference to make up this income to four 
thousand lire. All travel free on government railroads. Since 
the budget and the contingent of recruits is determined by annual 
laws, the houses must meet at least once a year unless, as fre¬ 
quently happens, the sessions are prolonged for more than a year. 

Procedure. — The president and vice-president of the 


428 


THE GOVERNMENT OF ITALY. 


Senate are appointed by the Crown, but the Chamber chooses 
its own president, who is continued in office without regard to 
party affiliations. The business of the houses is transacted by 
committees. The president of the Chamber appoints the com¬ 
mittees on rules and contested elections; in each house the 
budget committee is elected directly by the houses. For the 
rest, the Senate is divided into live and the Chamber into nine 
sections by lot every two months and these sections choose the 
committees not otherwise provided for. 

The ministers appear regularly upon the floor of the houses to 
defend their measures and to answer questions. The interpella¬ 
tion, or challenge of the policy of the ministry, exists, but the 
yote must follow after an interval of several days, and the minis¬ 
try is protected from the rashness of a snap vote taken immedi¬ 
ately which has proved so destructive to ministries in France. 

The Judiciary. — The judicial system of Italy is the 
result of a compromise between the existing order in the indi¬ 
vidual states at the establishment of the Kingdom and the needs 
of the new Kingdom. As a result there is lacking that centrali¬ 
zation and coordination of courts which makes for unity. Instead 
of a single supreme court there are five courts of Cassation, located 
in Turin, Florence, Rome, Naples, and Palermo, — each supreme 
within its own territory, and each interpreting the law in accord¬ 
ance with its own vfews, — so that it is possible to have five dif¬ 
ferent interpretations of the same law, each affecting a different 
district. The Court of Cassation at Rome has had conferred 
upon it exclusive jurisdiction to decide in cases of conflict of 
jurisdiction between different courts, conflicts between the courts 
and the administrative authorities, the transfer of cases from 
one court to another, writs of error in criminal cases, and some 
other special matters, but in all other cases involving the ordinary 
civil law the five courts of Cassation are all equal. The lower 
courts are more symmetrically organized, for they are new crea¬ 
tions and do not differ materially from the French plan. 

Administrative Courts. — In Italy, as in the rest of conti¬ 
nental Europe, there are administrative courts to try cases affect¬ 
ing administrative officers. In England no distinction is made 
between public and private law and all offences are subject to trial 


THE GOVERNMENT OF ITALY. 


429 


by the ordinary courts. Administrative law and administrative 
courts are sharply differentiated in France from the ordinary 
law and courts. In Italy the distinction is made but it has not 
been so clearly carried out as in France. A special section of the 
Council of State, composed of a president and eight councillors ap¬ 
pointed by the king, serves as the highest administrative court, 
while inferior jurisdiction has been conferred upon the prefects 
and certain assistants in the provinces. It has in general the 
right to decide whether the acts of the local or central officers 
are authorized by law, unless some special provision to the con¬ 
trary has been made by law. 

Local Government. — The local government in Italy is 
modeled on that of France and is even more centralized than that 
of the latter. Familiarity with the French system and the need 
for a strongly centralized government to meet the unsettled con¬ 
ditions in parts of the newly formed kingdom combined to sweep 
away all preexisting territorial divisions and forms of local gov¬ 
ernment. In its place was substituted an artificial division of 
the country into provinces, circondari, mandamenti, and com¬ 
munes, lacking in real local life. 

Prefect. — At the head of each province — they are 
sixty-nine in number — is a prefect appointed by the king and 
directly- responsible to the minister of the Interior. His func¬ 
tions correspond very closely to those of the French prefect, for 
he is both a political and an administrative official. He pub¬ 
lishes and executes the laws, supervises the administration of the 
provinces, opens and closes the sessions of the provincial council, 
sanctions or vetoes the acts of that body, and protects the inter¬ 
ests of the central government in the province. 

Council. — With the prefect there is associated a council 
of from twenty to sixty members, elected for a period of six 
years, with one-half of the members renewed every three years. 
The Council meets regularly once a year and its most important 
business is the voting of the provincial budget. A commission, 
elected by the Council from its members, carries on the business 
of the Council in the interval between its meetings. The prefect 
has large powers of control over the proceedings of the Council 
and he is not responsible to it but only to the central government. 


430 


THE GOVERNMENT OF ITALY. 


The circondari are primarily electoral districts and the mandamenti , 
or cantons, are mere administrative subdivisions of the provinces. 

The Commune. — The commune is the most vital of Italian 
local government units. It has the duty of maintaining streets, 
roads and markets ; to provide elementary education; to provide 
poor relief ; to see to the registration of electors ; to keep a regis¬ 
ter of births and deaths; and to provide police protection. In 
addition to its duties, it may provide for every sort of local enter¬ 
prise. The government of the commune is composed of a syndic, 
or mayor, and a council. The syndic is elected by the council 
from among its members for a term of three years. Though 
chosen by the council the syndic is a representative of the central 
government and may be removed, save in exceptional circum¬ 
stances, only with the consent of the prefect and is responsible not 
to the council but to his superiors. The council is composed of 
from fifteen to eighty members and its members are elected for a 
period of six years, one-half being renewed every three years. 
The council meets regularly twice a year and its work is carried 
on between meetings by a committee chosen from its members. 

The Pope. — The relation of the Kingdom of Italy to the 
Papacy has been extremely difficult of a satisfactory solution. 
The temporal power of the Popes had existed for centuries and 
was regarded as necessary for full religious freedom on the part 
of the church. But the continued existence of the Papal states 
stretching across the central portion of the peninsula was a bar to 
Italian unity. Accordingly the Papal states, with the exception of 
Borne, were added to the Kingdom in 1860. But there was a 
feeling that without Borne, united Italy was incomplete. 

Advantage was taken of the Pranco-Prussian war, when Na¬ 
poleon III. was in no position to aid the Pope, and on September 
20, 1870, Italian troops entered Borne and took possession of the 
city. Before moving the seat of government to Borne it was 
thought best to settle the position of the Pope, so the Law of the 
Papal Guarantees of May 13, 1871, was passed. According to 
this law the Pope enjoys the personal rights and privileges of a 
sovereign. His person is declared sacred and inviolable; public 
officials are not permitted to enter his palace or grounds in the ex¬ 
ercise of their duties ; and persons accredited to him enjoy all the 


THE GOVERNMENT OF ITALY. 


431 


immunities of diplomats. He is guaranteed freedom of intercourse 
and protection for papers and messages; he is granted annually 
the sum of six hundred and forty-five thousand dollars, but this 
he has never consented to receive; and he is left in undisturbed 
possession of the palaces of the Vatican, the Lateran, and Castel 
Gandolfo, with their gardens free from taxation. 

The Popes have never been willing to recognize the loss of their 
temporal power or to acquiesce in the present arrangements. 
For a time there was a hope that foreign powers might intervene 
to reestablish their claims, but when this hope vanished, Pope 
Pius IX. in 1883 promulgated a decree, the non expedite by which 
it was declared “ inexpedient ” for Catholics to participate in Par¬ 
liamentary elections, and in 1895 what had been declared “ inex¬ 
pedient ” was forbidden. This prohibition did not apply to mu¬ 
nicipal elections and was not widely observed by Catholics, many 
of whom strongly opposed it. Ten years later it was found neces¬ 
sary to relax the prohibition; the socialist party had been so 
rapidly growing in strength that Pope Leo XIII yielded to the 
argument that it was the duty of the Church to oppose socialism, 
and in 1905 he issued an encyclical which made it the duty of 
Catholics to support the social order and enjoined that they take 
part in political contests in its defense wherever it was threatened. 
The participation in political struggles must, however, be under 
the direction and control of the Church. The result has been to 
found a strictly Catholic and conservative party and to unite more 
closely the radical-republican-socialist groups through a common 
anti-clerical sentiment. 

Some Representative Authorities. 

Cesaresco , M., The Liberation of Italy, London, 1895, London, 1898. 
Dodd, W. E., Modern Constitutions, 2 vols., Chicago, 1909. 

Dupriez , L., Les Ministres dans les principaux pays d’Europe et Lh-lme- 
rique, 2 vols., Paris, 1892. 

Godkin, G., Life of Victor Emmanuel II., London, 1880. 

King, B., A History of Italian Unity, 2 vols., London, 1899. Mozzini, 
London, 1902. 

King and Okey, Italy To-day. 

Lowell, A. L., Governments and Parties in Continental Europe, 2 vols., 
Boston, 1896. 

Ogg , F. A., The Governments of Europe, New York, 1913. 


XII. 


THE GOVERNMENT OF BELGIUM. 

The history of Belgium justifies the statement that it has been 
the battle ground of Europe. It has formed a part of three great 
Empires: those of Charlemagne, of Charles the Fifth, and of 
Napoleon. It had been successively Spanish, Austrian, French, 
and Dutch, before finally attaining independence. From the days 
of Charles the Fifth it has had a separate existence. In the 
eighteenth century the Austrian Netherlands appear as a terri¬ 
tory distinct from the hereditary possessions of the Habsburgs? 
and under French dominion, administration and legal uniformity 
were gained. Thus through all the centuries and under so many 
different powers, the Belgians retained their identity and pre¬ 
pared the way for political independence. By the terms of the 
Congress of Vienna, there was established the United Kingdom 
of the Netherlands with William of Orange as sovereign. The 
Kingdom was composed of Holland, the bishopric of Liege, and 
the Austrian Netherlands, but the union was from the first an 
unhappy one. The constitution, drawn up in Holland, was re¬ 
jected by the Belgians, but was nevertheless put into operation. 
Dutch was made the official language though French was spoken 
in a large part of the Kingdom. The Protestant Dutch antago¬ 
nized the Catholic Belgians and the administration was more 
favorable to the Dutch than to the Belgian provinces. 

The French revolution of 1830 inspired the Belgians to follow 
a like course, and a national congress proclaimed the independ¬ 
ence of Belgium. A constitution was adopted February 7, 1831 
and Leopold of Saxe-Coburg was chosen king. In spite of Dutch 

432 


THE GOVERNMENT OF BELGIUM. 


433 


opposition, the conference of The Powers in London in 1831 
recognized the independence of Belgium, and Holland was forced 
to acquiesce. 

Plan of the Constitution. — The Belgian constitution con¬ 
sists of 139 articles divided into eight titles as follows : the ter¬ 
ritory and its divisions; citizens and their rights; concerning 
powers ; finances ; the army ; general provisions ; revision of the 
constitution ; and temporary and supplementary provisions. The 
constitution extends a rather long list of individual rights guar¬ 
anteed by the constitution and safeguarded by law. Among the 
constitutional rights of Belgians may be mentioned equality 
before the law; no distinction of classes; individual liberty; no 
arrest for longer than twenty-four hours without a warrant; 
inviolability of domicile and of property; religious liberty, 
freedom of the press, of speech, and of assembly, and the right 
of petition. 

Powers of Government. — All power emanates from the 
people and can only be exercised in the manner provided by the 
constitution. The legislation is exercised collectively by the 
King, the House of Representatives, and the Senate, each of 
which has the right of initiative; but money bills and laws relat¬ 
ing to the army contingent must be voted first by the House of 
Representatives. 

The executive power is vested in the King, subject to the 
provisions that his ministers are responsible and that no decree 
of the King shall take effect unless it is countersigned by a minis¬ 
ter who thereby renders himself responsible for it. 

The judicial power is exercised by the courts and the tribunals, 
but the authoritative interpretation of the laws is vested in the legis¬ 
lative power. Belgian courts cannot declare laws unconstitutional 
and the legislative power is the supreme power in the government. 

Made under the impulse of revolution, the Belgian constitution 
was remarkable for its liberality and democracy; at a time when 
the reactionary forces were in control in Europe, it represents 
complete popular supremacy and legislative omnipotence under 
the form of a constitutional monarchy. 

The Legislative Power; the Senate. — The country is 
divided into nine provinces, and from each province senators are 


434 


THE GOVERNMENT OF BELGIUM. 


chosen in two ways, some directly by the people and some by 
the provincial councils, to the number of two for each province 
having less than 500,000 inhabitants, of three for each province 
having from 500,000 to 1,000,000 inhabitants, and of four for 
each province having more than 1,000,000 inhabitants. The num¬ 
ber of senators to be elected directly by the voters shall be equal 
to one half the number of members of the House of Representa¬ 
tives. 

Senators are elected for a term of eight years, one half being 
elected every four years. In case of dissolution the whole Senate 
is renewed. The Senate is then divided, one half serving for four 
years and the other for eight. The qualifications for senator are 
Belgian citizenship and residence, civil and political rights, the 
payment of at least 1200 francs direct taxes or the proprietor or 
usufructuary of real estate in Belgium, the assessed income of 
which amounts to at least 12,000 francs. In the provinces in 
which those eligible do not reach the proportion of one for every 
5000 inhabitants, there are added a sufficient number of the 
highest taxpayers to make this proportion. In the case of senators 
elected by the provincial council, there is no property qualification. 
Senators must be at least forty years of age; they receive no 
salary or emoluments. Sons of the King, or if there be none, the 
Belgian princes of the branch of the royal family designated to 
succeed to the throne, are senators at the age of eighteen but have 
no vote until the age of twenty-five. 

House of Representatives. — The members of the House 
are chosen by direct election for a term of four years, one half 
being elected every two years. In the event of a dissolution, the 
whole House is renewed and the members are divided into two 
groups, one of which serves for two years and the other for four. 

Plural voting exists for members both of the House and of the 
Senate. All male citizens twenty-five years of age and resident 
for one year in the same commune and not otherwise disqualified 
by law have the suffrage. An additional vote is given all 
married men, and widowers with children, who have reached the 
age of thirty-five and pay a tax of not less than five francs as 
householders, unless exempt on account of a profession, and like¬ 
wise to all those who have reached the age of twenty-five, who 


THE GOVERNMENT OF BELGIUM. 


435 


own real estate of the value of at least 2000 francs or possess an 
income from land corresponding to such value, or are inscribed in 
the great book of the public debt or possess obligations of the 
Belgian savings bank bearing at least 100 francs interest. 

Two additional votes are given to citizens who have reached 
the age of twenty-five years and who hold a diploma from an in¬ 
stitution of higher instruction or a certificate showing the com¬ 
pletion of a course of secondary education of the higher degree or 
who hold or have held a public office or position or who practice 
or have practiced a private profession which presupposes at least 
the knowledge imported in the secondary instruction of higher 
degree. But no one shall have more than three votes, and voting 
is obligatory under penalties ranging from a reprimand and a fine 
of twenty-five francs to a temporary deprivation of the right to 
vote and hold office. The system of proportional representation 
is employed. The number of representatives is fixed by law ac¬ 
cording to the population, but must not exceed one for every 
40,000 inhabitants. 

Qualifications. —Members of the House must be Belgian 
citizens, resident in Belgium, and in the enjoyment of civil and 
political rights and at least twenty-five years old. The compen¬ 
sation of members is 4000 francs a year and free transportation on 
government railroads from the place of residence to the city 
where the session is held. 

The King and the Ministers. — The succession to the 
throne, or rather to the constitutional powers of the King, is 
hereditary in the House of Saxe-Coburg according to the Salic 
law. The powers of the King are limited to those conferred by 
the constitution and the laws; these he can exercise only through 
a responsible minister who must countersign all his decrees. 

The parliamentary system of government through responsible 
ministers is established by the constitution, and powers conferred 
upon the King are in reality the powers of the ministers who are 
responsible to the House of Representatives. The King ap¬ 
points and dismisses the ministers, but he must appoint those who 
can secure support for their policies from a majority in the 
House of Representatives, and he cannot in practice dismiss min¬ 
isters so long as they enjoy that support. The King approves 


486 


TEE GOVERNMENT OF BELGIUM. 


and promulgates the laws and must issue all regulations and de¬ 
crees necessary for the execution of the laws, but he cannot sus¬ 
pend or dispense with the laws. The King commands the military 
and naval forces, declares war, makes treaties of peace, alliance, 
and commerce, but treaties which may burden the state or bind 
Belgians individually take effect only after having received the 
approval of the two Houses. 

The Houses meet annually the second Tuesday in November, 
but the King may summon them earlier ; he may dissolve one or 
both of the Houses and he may adjourn them, but not for longer 
than a month and not oftener than once in a session without the 
consent of the Houses. 

The ministers are the leaders of the majority in the House of 
Representatives and also the administrative heads of the depart¬ 
ments, of which there are ten : Foreign Affairs ; Interior ; Science 
and Arts; Agriculture; Industry and Labor; Justice; Finance; 
Public Works ; War; and Railroads. Ministers have the right to 
appear and be heard in both Houses but can vote only in the 
House of which they are members. The Houses have the right 
to demand the presence of ministers. 

As under other systems of parliamentary government, the 
question and the interpellation are the normal means by which 
the Houses exercise control over the government. The question 
demands an answer from the minister but not a vote ; if a vote is 
demanded, it becomes an interpellation and there is a debate, 
followed by a vote. 

Committees. — The House is divided into six sections, re¬ 
newed every month by lot. Bills are referred to the sections for 
examination unless a special committee is appointed for a particu¬ 
lar bill. Each section appoints a reporter, and the six reporters, 
together with the president of the Chamber, form the central 
section, which in turn appoints its reporter. There are two per¬ 
manent committees of the House, elected by secret ballot at each 
session — a committee of finance and accounts and a committee of 
agriculture, industry, and commerce. The House also elects 
special committees whenever it sees fit, and this is the normal 
procedure in the Senate. 

The Judiciary. — The judicial system consists of a Court 



THE GOVERNMENT OF BELGIUM. 


437 


of Cassation for the whole of Belgium, which sits at Brussels. Its 
members are appointed by the King from two lists, one presented 
by the Court itself and the other by the Senate. Below the 
Court of Cassation are three courts of appeal, whose members are 
appointed by the King from two lists, one presented by these 
courts and the other by the provincial councils. Next in sequence 
come the courts of first instance who are appointed by the King, 
but the presidents and vice-presidents of these courts are ap¬ 
pointed from two lists, one presented by the courts and the other 
by the provincial council. In addition there are courts of assizes 
to hear criminal cases, military courts, courts of commerce and 
justices of the peace. All judges are appointed for life and no 
judge shall be deprived of his office or suspended till after trial 
and judgment. Nor can they be transferred except by a new ap¬ 
pointment and with their consent. Belgium differs from other 
continental countries in that it has no administrative courts but 
in this particular has followed the English system. 


f 


XIII 


THE GOVERNMENTS OF GERMANY. 

The Feudalization of Germany was in some points strongly 
contrasted with the feudalization of France. There was in Ger¬ 
many no Romanized subject population such as existed in Gaul, 
with habits which should enter like a leaven into the polity of 
their conquerors. Beyond the Rhine all were of one general 
kin, all bred to the same general customs. What was new 
there was the great Frankish kingship of Merowingian and 
Carolingian, —the new size and potency of the regal power bred 
amidst the readjustments of conquering migration by the domi¬ 
nant Franks. For the rest, there was at first the old grouping 
about elective or hereditary princes, the old tribal individualities 
of custom, the old organization into separate, semi-independent, 
self-governing communities. Feudalism came, not so much 
through fresh gifts of land and novel growths of privilege based 
upon such fresh gifts, not so much through ‘benefice 9 and ‘com¬ 
mendation 9 (pages 104-106, 108), as through the official organiza¬ 
tion of the Frankish monarchy. 

Official System of the Frankish Monarchy: the Counts. — 
In order to exercise their kingly powers the more effectually, the 
Frankish monarchs adopted the natural plan, for which there was 
Roman precedent, of delegating their functions to officers com¬ 
missioned to act as their representatives in various districts of 
their extensive domains. There does not seem to have been any 
symmetrical division of the territory into districts to fit the official 
system. Here and there there were counts ( Grafen ), the king’s 
vicegerents in the exercise of the financial, judicial, and military 
prerogatives of overlordship; but the limits of their jurisdiction 
were not always sharply defined. There were, for one thing, 

438 


THE GOVERNMENTS OF GERMANY. 


439 


many exemptions from their authority within the general dis¬ 
tricts allotted them. There were the dignity and pretensions 
of provincial princes to be respected, more important still, there 
were the claims of the great landowners to a special jurisdiction 
and independent lordship of their own to be regarded. As a 
matter of policy such claims were generally allowed. The 
demesnes of the greater landowners were cut out from the ad¬ 
ministrative territory of the count and given separate political 
functions. Barons, such as we have seen in France, — local 
autocrats with law courts and a petty sovereignty of their own, 
— were freely created. The king apparently could not deny 
them the ‘immunities’ they demanded. 

The Magistracy of Office and the Magistracy of Proprietor¬ 
ship. — There thus grew up, side by side, a double magistracy — 
a magistracy of office and a magistracy of proprietorship. The 
count ruled by virtue of his office; the baron by virtue of his 
landed possessions: there were lords by privilege, and lords by 
commission. As time went on the two sets of magnates drew 
nearer and nearer to the possession of a common character 
through an interchange of qualities. The office of count tended 
more and more to become hereditary and to connect itself with 
the ownership of large estates. Heredity of title and prerogative 
was the almost irresistible fashion of the age: the men of great¬ 
est individual consequence, besides, — the men who were fit be¬ 
cause of their individual weight to be delegated to exercise the 
royal authority, — were commonly the men of large properties. 
Either there went, therefore, along with the grafship, gifts of 
land, or else men already sufficiently endowed with lands were 
given the grafship: and as the office connected itself with pro¬ 
prietorship it took from proprietorship its invariable quality of 
heredity. This was the double process: counts became heredi¬ 
tary territorial lords ; and hereditary territorial lords acquired 
either the grafship itself or powers quite as great. 

Hereditary Chiefs. — Add to this hierarchy the more 
ancient dukes of the tribes, and the tale of greater lords is com¬ 
plete. These dukes were, by traditional title at least, rulers 
of the once self-governing communities which Frankish ascen¬ 
dency had in the days of conquest united under a common author- 


440 


THE GOVERNMENTS OF GERMANY. 


ity. In many cases, no doubt, they retained a vital local sway. 
They were intermediate, in the new political order, between the 
king and the barons. 

Full Development of Territorial Sovereignty. — By the 

thirteenth century German feudalization was complete. Dukes, 
counts, and barons had all alike become lords within their own 
territories (Landeslierreri). Bishops and abbots, too, as in France, 
had entered the competition for power and become themselves 
counts and barons. That territorial sovereignty, that private 
ownership of political authority which is the distinguishing mark 
of feudalism, and which we have seen so fully developed in 
France, is present in as full development here in Germany also. 
But the elements of the development are very different in the 
two countries. In France we have seen the appointment of royal 
delegates come after the perfecting of feudalism and lead, through 
the gradual concentration of judicial and other authority in the 
king’s hands, to the undermining and final overthrow of baronial 
sovereignty (pp. 195, 197). In Germany, on the contrary, the 
royal representatives, appointed while feudalism was taking shape, 
themselves entered and strengthened the baronage, quitting their 
dependent functions as officials for the independent privileges 
of territorial lords. 

The Markgraf. — One office especially fostered feudal in¬ 
dependence in Germany. Outside the hierarchy I have described, 
and standing in special relations with the king, was the Mark- 
graf — the count of the march or border, set to defend the king¬ 
dom against inroads by hostile peoples. He was of course chosen 
chiefly because of his capacity in war, and was of the most im¬ 
perative, masterful soldier breed of the times. To him, too, were 
necessarily vouchsafed from the first extraordinary powers. He 
was made virtual dictator in the unsettled, ill-ordered border dis¬ 
trict which he was appointed to hold against foreign attack; and 
he was freely given all the territory he could conquer and bring 
under the nominal authority of the king. It was thus that the 
Mark Brandenburg spread itself out to the northeast, to become 
at last a great kingdom, and that the Ostmark , established by 
Charles the Great as a barrier against the Hungarians, increased 
till it became the great state of Austria. The Markgraf was not 


THE GOVERNMENTS OF GERMANY. 


441 


long in becoming virtually a ruler in his own right, little dis¬ 
turbed by the nominal suzerainty of a distant monarch, and pos¬ 
sessed by fast hereditary right of the titles and powers which 
would one day make of him a veritable king. 

The Empire. — Charles the Great set for his successors 
the example of a wide rule and a Roman title. But for many 
a long age it seemed as if he had left behind him nothing but a 
tradition and a scheme of power which no man was able to take 
up. His great empire fell to pieces, never to be put together 
again, except as it seemed to rise once more for a little space in 
the days of Charles V. Even the greater fragments of it fell 
apart beyond the Rhine, shattered by the disintegrating forces 
of feudalism. But the name and shadow of the imperial power 
persisted from age to age with a strange vitality. First a line 
of Saxon princes, then men of the Franconian house, after them 
the masterful Hohenstaufen essayed the office Charles had made 
great, wielding such authority as they could as power came and 
went amidst the shifting scene of German politics. Finally the 
succession fell to the house of Habsburg, who were building a 
veritable kingdom together upon the southern skirts of Germany, 
where the Ostmark had grown to be Austria. As their strength 
increased, their presidency amidst the German states became an 
unmistakable power of command, and Germany had at last a 
leader, if not a master. 

The Imperial Cities. — While the imperial power lan¬ 
guished a notable thing happened. Germany gave birth to great 
free cities, set like independent states in the midst of their weak 
neighbors. The cities of the Empire had, as feudalism devel¬ 
oped, fallen into its order in two classes. Some of them held 
their privileges of the Emperor himself, were his immediate vas¬ 
sals ; others were subordinated to some feudal lord and were sub¬ 
jects of the Empire only through him. The position of those 
immediately dependent upon the Emperor was much more advan¬ 
tageous than the position of those who had lesser and nearer 
masters. The imperial supervision was apt to be much less 
exacting than the overlordship of princes who, having less wide 
interests to care for than those which busied the Emperor, could 
render their power greater by concentration. They were always 


442 


THE GOVERNMENTS OF GERMANY. 


near at hand and jealous of any movement of independence on the 
part of the towns within their domain; the Emperor, on the other 
hand, was often far away and never by possibility so watchful. 
He was represented always by some deputy; but the presence 
of this officer did not greatly curtail municipal self-government. 
In the thirteenth century even this degree of control was got 
rid of at the suit of some of the cities. They were allowed to 
become ‘free’ imperial cities, bound to the Emperor only by 
sworn allegiance, not by any bonds of actual government. The 
next step in the acknowledgment of their independence and im¬ 
portance was their admission to representation in the Diet of the 
Empire, —and such recognition was not long delayed. The role 
of these great free cities in imperial affairs became one of the 
most important of the many independent roles played on the 
confused stage of that troubled time. Liibeck, Hamburg, and 
Bremen retain to this day a certain privilege of position as free 
cities in the German Empire. 

484. The Swiss Confederation. — Almost at the very time that 
the Habsburgs first won the imperial crown and acquired the duchy of 
Austria, some of their Swiss dependencies broke away from them, and 
established an independence never since permanently broken. Schwyz, 
Uri, and Unterwalden, the sturdy little mountain communities grouped 
about the southern end of quiet Lucerne, with whose struggle for freedom 
the glorious story of the Swiss Confederation begins, contained some part 
of the estates of the Counts of Habsburg, whose hereditary domainr 
touched the other end of Lucerne, and stretched wide to the north about 
the further shore of Lake Geneva, and southward again on the West. The 
region of the Alps contained the notable imperial cities of Zurich, Berne. 
Basle, and Schaffhausen; and Schwyz, Uri, and Unterwalden claimed to 
be immediate vassals of the Emperor, as these cities were. The Counts 
of Habsburg, in despite of this claim, sought to reduce them to submission 
to themselves. The result was a long struggle in which the three little 
cantons, at first joined only by their neighbor canton, Lucerne, but after¬ 
wards by Zurich, Glarus, Zug, and Berne, were eventually completely 
victorious. By the formation of this famous league of free cantons and 
cities, at first known as the “ Old League of High Germany,” but ulti¬ 
mately as Switzerland (the land of Schwyz), there emerged from the 
German Empire one of the most interesting states known to history. It 
may be said to have been the offspring of the disintegrating forces of the 
Empire, — a living proof of its incoherence. 


THE GOVERNMENTS OP GERMANY. 


443 


Austria’s Rival, Prussia. —While Austria’s power was on 
the make a formidable rival had grown up in the north, out of 
the North Mark established in the tenth century as the Empire’s 
barrier against the Wends. Men of energy and daring had 
steadily pushed forward the eastern boundaries of the Mark until 
it had become a great territory, the Mark Brandenburg. In the 
fifteenth century the markgrafship fell into the hands of a race 
more capable than the Habsburgs, the Hohenzollerns of Nurem¬ 
berg. Under them it waxed greater yet alike in territory and in 
organized power: took in Prussia, the district from which it 
was to get its later name, and got ready for the role it was to 
play in the seventeenth, eighteenth, and nineteenth centuries. 
In 1640 Frederic William, the Great Elector (1640-1688), came 
upon the stage, to make his power a determining element in 
the politics of Europe. His son was Frederic, the first 1 king in 
Prussia.’ 

Frederic the Great. — Frederic, the first king of Prussia, 
governed from 1688 to 1713. His son, Frederic William I. 
(1713-1740), rounded out Brandenburg’s possessions and hoarded 
the money and prepared the army with which his son, Frederic 
the Great (1740-1786), was to complete the greatness of Prussia. 
Frederic took Silesia from Austria, and then, joining in the 
heartless and scandalous partition of Poland in 1772, filled up the 
gap between Brandenburg and East Prussia with West Prussia 
and the Netze district. The second and third partitions of friend' 
less Poland in 1793 and 1795 added to Prussia the district now 
known as Posen and a part of East Prussia. 

Prussia was at last ready for her final rivalry with Austria for 
the leadership of Germany. But first there was to be the great 
storm of the Napoleonic wars, which was to sweep away so much 
that was old in German political arrangements, and create the 
proper atmospheric conditions for German nationality. 

Napoleon: the Confederacy of the Rhine. — One of the 
earliest acts of Napoleon in his contest with Austria and Prussia 
was to isolate these two great German states by thrusting between 
them a barrier of smaller German states attached to the French 
interest. So little coherent was Germany, so little had the Em¬ 
pire made of the Germans a single nation, that Napoleon was 


444 


THE GOVERNMENTS OF GERMANY. 


able to detach from all alliance with either Austria or Prussia 
every one of the German states except Brunswick and the elec¬ 
torate of Hesse. Of these the chief were the kingdoms of Bavaria 
and Wtirttemberg and the grand-duchy of Baden. Napoleon 
organized out of these allies the so-called ‘Confederacy of the 
Rhine,’ of which he constituted himself ‘Protector,’ and which 
lasted from 1806 till 1813. 

The year 1806 had marked also the formal end of the 
1 Holy Roman Empire ’ over which the Habsburgs had so long 
presided. The eighteenth century had witnessed a notable de¬ 
cline in their power; the sweeping conquests of Napoleon put 
them at his mercy; and in 1806 Francis of Austria was forced to 
abdicate and forever renounce the imperial office. There was no 
more to be a German Empire till Prussia should draw one about 
her, and Austria be once for all ousted from her place of leader¬ 
ship in Germany. 

The German Confederation (1815-1866). — Despite the 
ease with which he at first divided Germany in order to conquer 
it, Napoleon discovered at last that he had himself aroused there 
a national feeling which was to cast him out and ruin him. In 
1813 Germany rose, the Confederacy of the Rhine went to pieces, 
and all Napoleon’s plans were undone. He had done Germany 
the inestimable service of making her patriotic. The Congress 
of Vienna, which met at the close of the Napoleonic wars to 
recompose Europe, could not revivify the German Empire: that 
had been dead for some time before Napoleon forced a winding 
up of its affairs. But Germany was not to remain disintegrate. 
The year 1815 witnessed the formation of a new union of the Ger¬ 
man states, the German Confederation, which, loose as it seemed, 
held them more closely together than they had been held for many 
generations. Austria was the president of the Confederation. 
The organ of government was a Diet of ambassadors from the 
thirty-nine component states (kingdoms, duchies, cities, princi¬ 
palities) authorized to mediate between the states in all matters 
of common concern; and the Confederation maintained an army 
of thirty thousand men. The arrangement was little enough like 
national union: the large states had a preponderant representation 
in the Diet, Austria dominating all; and each state, whether great 


THE GOVERNMENTS OF GERMANY. 


445 


or small, was suffered to go its own way, make its own alliances, 
and fight its own wars, if only it refrained from injuring any one 
of the Confederates or the interests of the Confederation. But 
there was sufficient cohesion to keep the states together while 
German national feeling grew, and while the political revolutions 
of the century (1830 and 1848) liberalized political institutions. 

Period of Constitutional Reform. — By 1848 most of the 
German states, except Prussia, granted constitutions to their 
people. In the same year a ‘German National Parliament’ met 
at Frankfort (the seat of the Diet of the Confederation) and 
attempted to formulate a plan for more perfect union under the 
leadership of Prussia; but its leaders proposed much more than 
was possible, the time was not yet ripe, and the attempt failed. 
Still earlier, in 1833, Prussia had led in the formation of a ‘ Cus¬ 
toms Union’ ( Zollverein ) between herself and all 1 the states of 
the Confederation except Austria, which laid a free-trade basis for 
those subsequent political arrangements from which also Austria 
was to be excluded. In 1850 Prussia received from the hands of 
her king the forms, at least, of a liberal government, with parlia¬ 
mentary institutions. 

The North German Confederation (1867-1871). — Finally, 
in 1866, came the open breach between Prussia and Austria. 
The result was a six weeks’ war in which Austria was completely 
defeated and humiliated. The Confederation of 1815 fell to 
pieces ; Prussia drew about her the Protestant states of Northern 
Germany in a ‘ North German Confederation ’; the middle states, 
Bavaria, Wiirttemberg, Baden, etc., held off for a while to them¬ 
selves ; and Austria found herself finally excluded from German 
political arrangements. 

Austria out of Germany. — Thereafter Austria, originally 
predominantly German, devoted herself to the fruitless task of 
amalgamating the various nationalities of Southeast Europe under 
her hegemony, and so became in large part a non-German state. 
Prussia became the head and front of Germany, in her stead. 
Meantime Prussia has grown more than one-fifth in territory. 
The rearrangement at Vienna in 1815 gave her Swedish Pom- 
merania and the northern half of Saxony; the war of 1866 gained 
1 The Union did not at first include this 4 all,’ hut it did eventually. 


446 


THE GOVERNMENTS OF GERMANY. 


for her the possession of Schleswig-Holstein, Hannover, Hesse- 
Cassel, Hesse-Nassau, and Frankfort. 

The German Empire. — The finishing impulse was given 
to the new processes of union by the Franco-Prussian war of 
1870-1871. Prussia’s successes in that contest, won, as it seemed, 
in the interest of German patriotism, broke the coldness of the 
middle states towards their great northern neighbor; they joined 
the rest of Germany; and the German Empire was formed 
(Palace of Versailles, January 18, 1871). 

Government of the Empire. 

Austria and Germany: Character of the German Empire. 

— When he ceased to be Emperor of the Holy Homan Empire 
(1806), Francis I. still remained Emperor of Austria. He had 
assumed that title in 1804; and there became in full form, — 
what there had long been in reality, — an Austrian Empire. In 
1871 there arose by its side a new German Empire, but the two 
empires were thoroughly unlike one another. The Austrian 
Empire, though wearing the form of a dual monarchy as Austria- 
Hungary, was composed of the hereditary possessions of the 
House of Habsburg; the German Empire, on the other hand, 
was a federal state composed of four kingdoms, six grand-duchies, 
five duchies, seven principalities, three free cities, and the im¬ 
perial domain of Alsace-Lorraine, these lands being united in a 
great 1 corporation of public law 9 under the hereditary presidency 
of the king of Prussia as German Emperor. 

The four kingdoms were Prussia, Bavaria, Saxony, and Wiirt- 
temberg; the grand-duchies, Baden, Hesse, Mecklenburg-Schwerin, 
Saxe-Weimar, Oldenburg, and Mecklenburg-Strelitz ; the duchies, 
Brunswick, Saxe-Meiningen, Anhalt, Saxe-Coburg, and Saxe-Alten- 
burg; the principalities, Waldeck, Lippe, Schwarzburg-Budolstadt, 
Schwarzburg-Sondershausen, Beuss-elder line, Schaumberg-Lippe, 
and Beuss-younger line; the free cities, Hamburg, Liibeck, and 
Bremen. 

The Central German States and the Empire. — The first 
step towards the new union was taken in 1870, when Baden, 
Bavaria, and Wurttemberg, fearing that the object of Napoleon 


THE GOVERNMENTS OF GERMANY. ( 447 

III. was to conquer the central German states or renew the Con¬ 
federation of the Rhine, decisively espoused the side of Prussia 
and the North German Confederation. While the siege of Paris 
was in progress these three states sent delegates to King William 
at Versailles and formally united themselves with their northern 
compatriots: the North German Confederation became the Ger¬ 
man Confederation, with King William as president. Almost 
immediately, thereafter, the influences of the time carried the Con¬ 
federates a step farther : the president-king was crowned Emperor, 
and the German Confederation became the German Empire. 1 

The Character of the Empire. — These changes of mem¬ 
bership and of title did not, however, change the character or, at 
first, the constitution of the union. It remained a federal state, 
and the king of Prussia was still its president only; he was not 
its monarch. Its make-up and powers were not radically altered. 
Prussia, indeed, was very great: in territory nearly three times 
as large as all the other states of the union put together, her 
population three-fifths that of all Germany; and the king of 
Prussia had other means of mastery than those afforded by the 
law. But as Emperor he occupied not an hereditary throne, ‘but 
only an hereditary office. Sovereignty did not reside in him, 
but “ in the union of German federal princes and the free cities.” 
He was the chief officer of a great political corporation, whose 
object it was to “ form an eternal union for the protection of the 
realm and the care of the welfare of the German people.” 

The Emperor. — Still his constitutional prerogatives were 
of the most eminent kind. He was irresponsible : he could not be 
removed, his office belonging inalienably to the throne of Prussia. 
He summoned, opened, adjourned, and closed the two Houses 
of the federal legislature, the Bundesrat and the Reichstag , the 
latter of which he could also, with the consent of the Bundesrat , 
dissolve. He appointed, and might at his pleasure remove, the 
Imperial Chancellor, who was both the vital centre of all impe¬ 
rial administration and the chairman of the Bundesrat; and he 
appointed also, under the countersignature of the Chancellor, all 
minor officers of the imperial service, whom, with a like coopera¬ 
tion of the Chancellor, he might also dismiss. He controlled the 

1 The constitution of the Empire hears date April 16, 1871. 


448 


THE GOVERNMENTS OF GERMANY. 


foreign affairs of the Empire and commanded its vast military 
forces ; and in this latter capacity, of commander-in-chief of the 
imperial army, it rested with him, acting at the suggestion of the 
Bundesrat , to coerce into obedience such states of the Empire 
as might at any time wilfully and pertinaciously neglect to fulfil 
their federal duties. He had, in brief, to the fullest extent, both 
the executive and the representative functions now characteristic 
of the head of a powerful constitutional state. There were dis¬ 
tinct limits to his power as Emperor, limits which marked and 
emphasized the federal character of the Empire; but those limits 
nevertheless lay abundantly wide apart. Adding, as he did, to 
his powers as hereditary president of the Empire his command¬ 
ing privileges as king of Prussia and, as king of Prussia, the 
dominant member of the Union, he possessed no slight claim to 
be regarded as the most powerful ruler of our time. 

Sovereignty of the Empire in Legislation. — So complete, 
so unlike that of a mere confederation, was the union of German 
states that the sovereign legislative power of the Empire was 
almost unlimited. The constitution could be amended by the 
federal legislature; amendment might change all the existing 
allotments of power as between the federal and the state govern¬ 
ments ; powers reserved to the states could, except in one or two 
instances in which they were explicitly guaranteed, be withdrawn 
from them without their consent. The individual states virtually 
retained their general rights “ only by sufferance of the Empire.” 1 
Amendments of the constitution were not submitted either to the 
people or to the governments of the states: nor were they passed 
by any special or peculiar procedure, as in France (p. 401). They 
were originated and acted upon as ordinary laws would be. The 
only limitations put upon their passage were, first, that fourteen 
negative votes in the Bundesrat would defeat a proposed amend¬ 
ment, and, second, that no state could be deprived of any right 
guaranteed to it by the constitution, without its own consent. 
From the first the legislative power of the Empire covered the 
entire field of the 'law of contracts, of commercial law, and of 
criminal law ; and by an amendment of December 20,1873, it was 

1 Laband, Das Staatsrecht des deutschen Reiches (Marquardsen’s Hand- 
buch ), p. 22. 


THE GOVERNMENTS OF GERMANY. 


449 


extended to the whole field of civil law as well. For some time 
it did not exercise its power over the whole domain of these great 
subjects, but it later enacted, besides full codes of commercial and 
criminal law, an exhaustive civil code which brought practically all 
of private law under the statutes of the imperial government. 

The Bundesrat: its Composition and Character. — The 
central and characteristic organ of the Empire was the Bundesrat , 
the Federal Council, which was alike in make-up and function, 
the lineal successor of the Diet of the older Confederation. In 
form, in theory, and indeed in fact, the Bundesrat was a body of 
ambassadors. Its members represented the governments of the 
states from which they came, and were accredited to the Emperor 
as diplomatic agents, plenipotentiary charges d’affaires , to whom 
he must extend the same protection that was extended to the like 
representatives of foreign states. It was a fundamental conception 
of the German constitution that “ the body of German sovereigns 
together with the senates of the three free cities, considered as a 
unit, — tanquam unum corpus, — is the repository of imperial 
sovereignty ”; 1 and the Bundesrat was the organ of this body. 
It was therefore the organ through which the sovereignty of the 
Empire was expressed. The Emperor did not exercise sovereignty: 
he only shared it as king of Prussia, so far as the Empire was con¬ 
cerned, and took part in its exercise only through the Prussian 
members of the Bundesrat. It followed, of course, from this prin¬ 
ciple that the members of the Bundesrat were only the agents of 
their governments, and acted under instructions from them, making 
regular reports of the proceedings of the Bundesrat to their home 
administrations. The votes of a state were valid, whether cast by 
its representatives in accordance with their instructions or not; 
but the delegates were responsible for every breach of instructions 
to their home authorities. In practice they were generally them¬ 
selves members of the governments they represented, entrusted 
also with high administrative functions at home, and represent¬ 
ing their governments in the local legislative bodies of their own 
states, as well as in the Bundesrat. The Bundesrat was thus' 
used, as it was intended to be, and as it was used under the some¬ 
what looser forms of the earlier Confederation, as a body of con- 

1 Laband, p. 40. 


450 


THE GOVERNMENTS OF GERMANY. 


sultation and guidance, a larger sort of imperial cabinet, in which 
the responsible ministers of the several states drew together to 
determine all questions of general interest, whether they affected 
the making or the administration of the laws. 

Representation of the States in the Bundesrat. — The 
states of the Empire were unequally represented, according to 
their size. Prussia had seventeen votes; Bavaria six; Saxony 
andWiirttemberg four each; Baden, Hesse and Alsace-Lorraine, 1 
each three; Mecklenburg-Schwerin and Brunswick each two; 
the other seventeen states one apiece. The votes of each state 
which was entitled to more than one vote were cast together as a 
unit, and each such state could cast her full vote whether or not 
it had its full number of representatives present. 

Members were sent and withdrawn at the pleasure of their 
respective governments, like the responsible agents they were; 
and their constant responsibility made formal instruction as to 
their votes upon particular measures for the most part un¬ 
necessary. The smaller states found the duty of maintaining 
representatives at times very onerous; and, inasmuch as it was 
not required by law that their delegates should be chosen from 
among their own citizens, it became a common practice for them 
to serve economy and their own convenience by combining to 
maintain joint representatives. Groups of them combined, and 
each group delegated its powers to a single person, who was 
authorized to represent them severally. 

The significance of the constitutional provision that amend¬ 
ments to the constitution could not pass even if there be fourteen 
negative votes cast in the Bundesrat is quite evident. A com¬ 
bination of the small states could in theory defeat any organic 
change of law proposed by the large states; and Prussia alone 
could bar any amendment to which she was opposed. The seven¬ 
teen votes of Prussia on the one side and the seventeen votes of 
the small states on the other might be said, were there any real 
offset to the power of Prussia, to have constituted the central 
balance of the system, but the control by Prussia of the four 
additional votes destroyed even the semblance of a balance. 

1 The one vote of Waldeck was permanently in the hands of the King of 
Prussia and the three votes of Alsace-Lorraine were controlled by Prussia. 


THE GOVERNMENTS OF GERMANY. 


451 


Functions of the Bundesrat. — The Bundesrat occupied a 
position in the German system in some respects not unlike that 
which the Roman Senate held in the government of Rome. It 
was, so to say, the residuary legatee of the constitution. All 
functions not specifically entrusted to any other constitutional 
authority remained with it, and no power was in principle 
foreign to its jurisdiction. It had a composite character, and 
was the presiding organ of the Empire. It was at one and the 
same time an administrative, a legislative, and a judicial body. 

In its legislative capacity, it presided over the whole course of 
lawmaking. The Reichstag had the right to originate measures, 
but, as a matter of practice, originated very few. Most bills first 
passed the Bundesrat and went with its sanction to the Reichstag. 
If passed by the people’s house, they were returned to the 
Bundesrat , and there once more adopted. All the more im¬ 
portant legislation, moreover, was framed by the imperial officials 
and presented to the Bundesrat by the Chancellor, who was not 
only president of the federal chamber but also chief of the 
Prussian delegation. Prussia, therefore, in reality presided over 
the process of legislation. Hers was the chief initiative ; and the 
federal chamber, in which she controlled twenty-one votes, was 
the usual source of every great measure. The Reichstag had, of 
course, the right of amendment, and sometimes exercised it; but 
nothing that it suggested could become law without the assent of 
the guiding and overseeing Bundesrat. The consent of the 
Bundesrat , as well as of the Reichstag , was necessary to every 
treaty which affected any matter that fell within the legislative 
powers of the Empire. 

The measures sent down from the Bundesrat to the Reichstag 
were generally advocated there, if not by the chancellor himself, 
by members of the federal chamber specially delegated for that 
purpose; and the Reichstag was usually kept advised of the 
amendments which the Bundesrat would accept. All members 
of the Bundesrat had, however, the right to be present in the 
Reichstag , and to express the views of their governments upon 
its floor concerning pending legislation, even when the views 
were not those which had been accepted by the majority in the 
Bundesrat. 


452 


THE GOVERNMENTS OF GERMANY. 


The administrative function of the federal chamber may be 
summed up in the word oversight. It considered all defects or 
needs which discovered themselves in the administrative arrange¬ 
ments of the Empire in the course of the execution of the laws, 
and might, in all cases where that duty had not been otherwise be¬ 
stowed, formulate the necessary regulation to cure such defects 
and meet such needs. It had, moreover, a voice in the choice of 
some of the most important officers of the imperial service. It 
nominated or elected the members of the Court of Accounts, of 
the Supreme Court of the Empire ( Reichsgericht ), and of the 
1 Chamber of Discipline/ as well as the officials who administered 
the imperial pension funds, and those who constituted the direc¬ 
tory of the Imperial Bank. It confirmed the nomination, also, 
either directly or through one of its committees, of consuls and 
of the officers who exercise the imperial control over the duties 
and taxes laid by the states under laws of the Empire. The con¬ 
sent of the Bundesrat was also necessary to a declaration of war 1 
(except in case of invasion, when the Emperor could act alone), 
to a dissolution of the Reichstag during a legislative period, and 
to coercive action against a state of the Empire. 

The judicial functions of the Bundesrat sprang in part out of 
its character as the chief administrative council of the Empire. 
When acting as such a council, many of its conclusions partook 
of the nature of decisions of a supreme administrative court of 
appeal. But its jurisdiction as a court was much wider than ques¬ 
tions of administration. It could declare a state of the Empire 
delinquent, and order execution to issue against it. It was the 
court of highest instance in every case of the denial of justice to 
an individual in a state court arising out of a defect or deficiency 
in the law of the state ; it being within its competence in such a 
case to compel the state to cure the deficiency and afford the 
suitor the proper remedy. It was the court of appeal in all cases 
of dispute between the imperial government and a state, and in 
all cases arising between two or more states of the Empire which 
involved not mere private law questions (such cases go to the or¬ 
dinary civil courts), but points of public law. 

1 That this power was illusory is shown by the declaration of war in 1914 
when the Bundesrat was not in session. 


THE GOVERNMENTS OF GERMANY. 


458 


In case it could not agree upon a conclusion in such disputes, the 
whole legislative power was brought into play and a law was passed 
covering the matter in controversy. If in any case it considered it¬ 
self unfitted by its organization, or for any other reason, to act 
as a court in controversies brought before it, it might delegate its 
judicial powers to a court or to experts. This it did in 1877 with 
reference to the dispute between Prussia and Saxony concerning 
the Berlin-Dresden railway. 1 

Organization of the Bundesrat. — The Imperial Chan¬ 
cellor was chairman of the Bundesrat He was appointed by the 
king of Prussia, and he must also be one of Prussia’s seventeen 
representatives, — for it is the better opinion among German con¬ 
stitutional lawyers that the Chancellor’s membership in the federa 1 
chamber was necessary to his presidency of the body. In case of 
a tie vote, the Chancellor’s vote was decisive: that is to say, the 
side on which Prussia’s votes were cast prevailed , for her vote must 
be undivided: — the Chancellor’s vote was not his own, but was 
one-seventeenth part of Prussia’s whole vote. 

Inasmuch as it was not merely the legislative but also the ad¬ 
ministrative organ of the Empire, the Bundesrat might be convened 
without the Reichstag. It must be called together if one-third of 
its members demanded a session. Its business, moreover, was 
continuous from session to session, being taken up at each session 
where it was left off at the last: an arrangement by which it gained 
both efficiency and expedition in action. Its sessions were secret: 
for it preserved the reserve of a guiding cabinet. Its compro¬ 
mises and quarrels did not go abroad. 

Imperial law made no provision with regard to a quorum in the 
Bundesrat. It is believed by German jurists, however, that its 
business could go forward, after proper notice, if only the Chan¬ 
cellor, its president, were present. No state could cast its vote 
upon any question in which it was not interested. 

Committees. — The Bundesrat followed the practice of other 
deliberative bodies in referring various matters to special com¬ 
mittees of its members. It had, too, like other bodies,' certain stand¬ 
ing committees. These were four: one on Alsace-Lorraine, one on 
the Constitution, one on the Order of Business, and one on Bail- 
road Freight Bates. 


Laband, p. 43, n. 


4D4 


THE GOVERNMENTS OF GERMANY. 


Much, more important than these, however, were eight delega¬ 
tions of its members which, though called committees, may be more 
properly described as Commissions , for, like the executive commit¬ 
tee of our own Congress under the old Confederation (p. 288), they 
continued to sit during the recesses of the chamber which they in 
a sense represented. Of these Commissions two were appointed by 
the Emperor, namely a Commission “ for the Land Forces and 
Fortifications ” and a Commission “ for Naval Affairs ” : five were 
chosen yearly by the Bundesrat, namely, those “on Tariffs and 
Taxation,” “for Trade and Commerce,” “for Railways, Posts, 
and Telegraphs,” “ on Justice,” and “ on Accounts ” ( Rechnungs - 
iveseri) ; the eighth and most important, the “ Commission on 
Foreign Affairs,” consisted of the representatives of Bavaria, 
Saxony, and Wurttemberg, and of two other members chosen by 
the Bundesrat. At least five states must be represented on each 
of these Commissions, and Prussia must always be one of the five, 
except in the case of the Commission on Foreign Affairs. On this 
last Prussia needed no representation ; she had committed to her, 
through her king who is also Emperor, the whole conduct of the 
foreign affairs of the Empire; the Commission was appointed 
simply to watch the course of international relations, and to inform 
the several states of the posture of foreign affairs from time to 
time. “ It has to prepare no conclusion for the Bundesrat and to 
make no reports to it: it serves to receive communications concern¬ 
ing the foreign affairs of the Empire and to exchange opinions with 
the imperial administration concerning ” those affairs. 1 Its action 
was thus independent of its connection with the Bundesrat; and 
this is the chief point of contrast between it and the other Com¬ 
missions. Their duties were principally to the Bundesrat: they 
for the most part only made reports to it. 

Besides their right to representation on the Commission on 
Foreign Affairs, of which Bavaria had the presidency, Wurttem¬ 
berg, Bavaria, and Saxony had also the right to appointments on 
the Commissions for Land Forces and Fortifications and for Naval 
Affairs which it was the privilege of the Emperor to name. 
Prussia was entitled to the presidency of all the Commissions ex¬ 
cept that on Foreign Affairs. Each state represented had one 
^aband, p. 46. 


THE GOVERNMENTS OF GERMANY. 


455 


vote in the action of a Commission, and a simple majority 
controlled. 

The Reichstag : its Character and Competence. — It would 
lead to very serious misconceptions to regard the Bundesrat and 
the Reichstag as simply the two houses of the imperial legislature, 
unlike each other only in some such way as our Senate and House 
of Representatives are unlike, only, i. e., because the upper house 
was differently constituted and was entrusted with a certain share 
in functions not legislative. Properly conceived, the Bundesrat 
and Reichstag stood upon a very different footing with reference 
to each other. The Bundesrat was the sovereign organ of the 
Empire, the authoritative representative of the “ body of German 
sovereigns and the senates of the free cities.” Though it in¬ 
itiated most of the legislation of the Empire, legislation was no 
more peculiarly its business than was the superintendence of ad¬ 
ministration or the exercise of judicial functions. It, as part of 
the administration, governed; the Reichstag , as representing the 
German people, was supposed to control. The control of the 
Reichstag was exercised, not only through its participation in 
legislation, but also through the giving or withholding of its sanc¬ 
tion to certain ordinances to whose validity the constitution made 
its concurrence necessary; through its power of refusing to pass 
the necessary laws for the execution of treaties of which it does 
not approve; through its right to inquire into the conduct of 
affairs ; and through its right of remonstrance. Its powers were 
not enumerated ; they were, exercised in one form or another, 
in theory as wide as the activities of the Empire. The legislative 
competence of the Empire was, after 1873, legally unlimited as to 
private law: it covered the whole held of civil and criminal 
enactment. 

Composition of the Reichstag. — The Reichstag represented, 
not the states, or the people of the several states regarded sepa¬ 
rately, but the whole German people. Representation was dis¬ 
tributed on the basis of about one representative to every one 
hundred and thirty-one thousand inhabitants. Representatives 
were, however, elected by districts, one for each district, and no 
district could cross a state line and include territory lying in more 
than one state. If, therefore, any state of the Empire had less 


466 


THE GOVERNMENTS OF GERMANY. 


than one hundred and thirty-one thousand inhabitants, it must, 
nevertheless, be constituted a district and send a representative to 
the Reichstag. 

The Reichstag consisted (1917) of three hundred and ninety- 
seven members ; and of this number Prussia returned two hundred 
and thirty-five, about three-fifths of the whole number. The elec¬ 
toral districts were fixed so long ago that Berlin, though it had 
grown to possess more than two million inhabitants, had only six 
members in the Reichstag. 

The members of the Reichstag were elected for a term of five 
years by universal suffrage and secret ballot. The voting age in 
Germany was twenty-five years; and that was also the earliest 
age of eligibility to the Reichstag. 

The election districts were determined in the northern states according 
to laws passed under the North German Confederation ; in Bavaria, by the 
Bavarian legislature ; in the other southern states, by the Bundesrat. The 
subdivisions of the districts, the voting precincts, were determined by the 
administrations of the states. 

An absolute majority was required for election, as in France (p. 152). 
In case no candidate received such a majority, the commissioner of election 
— an officer appointed by the state administration for each district — 
ordered a new election to take place within fourteen days after the official 
publication of the result of the first, the voting to be for the two candi¬ 
dates who received the highest number of votes. Should this second elec¬ 
tion result in a tie, the lot decided. 

Election to the Reichstag took place, not on days set by statute, 
but on days appointed by executive decree. For the Reichstag 
could be dissolved by the Emperor, with the consent of the Bund¬ 
esrat (by a vote in which Prussia concurred) before the completion 
of its regular term of five years. 

In case of a dissolution, it was required that a new election 
must be ordered within sixty days, and the Reichstag must re¬ 
assemble within ninety days. The Emperor could also adjourn 
the Reichstag without its own consent (or, in English phrase, pro¬ 
rogue it) once during any session, for not more than thirty days. 

Sessions of the Reichstag. — The Reichstag met at the call 
of the Emperor, who must call it together at least once each year; 
and who might convene it oftener. He must summon at the same 
time the Bundesrat. The sessions of the Reichstag were public ; it 


THE GOVERNMENTS OF GERMANY. 


457 


was not within its choice to make them private. A private session 
was regarded as, legally, only a private conference of the members 
of the Reichstag , and could have no public authority whatever. 

Members of the Reichstag who accepted a salaried office under the 
Empire or one of the states, or an imperial or state office of higher rank 
or power than any they may have held when elected, were compelled to 
resign and offer themselves for reelection. 

Organization of the Reichstag. — The Reichstag elected its 
own president, vice-presidents (2), and secretaries. For the 
facilitation of its business, it divided itself by lot, for the session, 
into seven 1 Sections 9 ( Abteilungen ), each Section being made to 
contain, as nearly as might be, the same number of members as 
each of the others. These Sections divided among them the work 
of verifying the election of members and the choice of special 
committees. The Reichstag had no standing committees; but 
from time to time, as convenience suggested, temporary commit¬ 
tees were named, whose duty it was to prepare information for the 
body, which they presented in reports of a general nature. These 
committees it was which the Sections selected. Each Section con¬ 
tributed its quota of members to each committee. The party 
leaders, however, always determined beforehand the division of 
places on the Committees and the Sections merely did their will 
in the matter. Government bills, moreover, were not referred to 
the committees. They played no such part in revision as is played 
by the committees of the French Chamber of Deputies. One-half 
of the members constituted a quorum; and an absolute majority 
was requisite to a valid vote. 

Election of Officers. — The initial constitution of a newly 
elected Reichstag was interesting. It oame to order under the 
presidency of the oldest member; it then elected its president, 
two vice-presidents, and secretaries; the president and vice- 
presidents for a term of only four weeks. At the end of these 
four weeks a president and vice-presidents were elected for the 
rest of the session. There was no election of officers for the 
whole legislative term, as in England and the United States: at 
the opening of each annual session a new election took place. It 
was only at the first, however, that there was a, so to say, ex¬ 
perimental election for a trial term of four weeks. 


458 


THE GOVERNMENTS OF GERMANY. 


Powers of the Reichstag : the Budget. — The Bundesrat, 
as I have said, governed ; the Reichstag in a measure controlled. 
But only in a measure. Its assent was necessary to the validity 
of all legislation. Though the Bundesrat originated, it could not 
rule in the field of law without the cooperation of the popular 
chamber. Like other popular assemblies, too, the Reichstag 
voted the taxes and subjected the government to criticism 
when it asked for money. But the annual budget came to it like 
other subjects of legislation, from the Bundesrat , and with the 
sanction of that great chamber already behind it; many of the 
principal revenue laws were not annual but permanent; the army, 
for whose maintenance the larger votes were asked, was organized 
for periods of several years together and must be paid ; and there 
was really very little latitude of choice with regard to any but 
new or subordinate expenditures. No minister was responsible to 
the Reichstag for what he did or proposed. The Emperor might 
dissolve the Reichstag at any time, if the Bundesrat consented, 
and he frequently exercised the power with the result of obtain¬ 
ing in the new elections the majority lie desired. The Reichstag 
might influence affairs, might win slow victories by persistent and 
well-directed criticism, might force modifications of policy ; but it 
was constantly made to realize the fact that it could not govern, 
and that its chief function was not origination but control. 1 

Classes and Parties. — The majority of its members, more¬ 
over, were Prussians, and Prussia was above all things else a mili¬ 
tary state, trained to the compact order and instinctive obedience 
of a strong monarchy. Classes, too, were sharply marked in Prus¬ 
sia. An active and influential landed aristocracy furnished the 
army with its best officers, the court with its most devoted servants, 
the public assemblies with their most conservative leaders. The 
parties that desired democratic privilege worked against ancient 
prestige, against the habit of the community, against the organi¬ 
zation and the prejudices of long-established classes. National 
parties, moreover, were broken athwart by the divergent feelings 
and variant interests of the different states of the unequal Em¬ 
pire. Prussia supported the monarchy whose power galled the 

1 On at least two occasions unfavorable votes upon the resolution after inter¬ 
pellation had no effect upon the government, 


THE GOVERNMENTS OF GERMANY. 


459 


lesser states; her statesmen withstood the process of liberaliza¬ 
tion which men of some of the smaller states would fain have 
seen pressed forward. Neither responsible party government nor 
any kind of clear-cut constitutional rule was possible. 

Imperial Administration. — While the distinction between 
the executive and legislative functions of government was sharply 
enough preserved in Germany, no equally clear discrimination was 
made in practice between executive and judicial functions. The 
judiciary was a branch of the administration. The caption ‘ Im¬ 
perial Administration’ covered, therefore, all activities of the 
government of the Empire which were not legislative. 

Although it was a fundamental principle of the imperial con¬ 
stitution that ‘ the Empire has sovereign legislative power, the 
states only autonomy/ the Empire occupied only a part of the 
great field thus opened to it, and confined itself as a rule to mere 
oversight, leaving to the states even the execution of imperial 
laws. The judges of all but the supreme imperial court, for 
instance, the tariff officials and gaugers, the coast officers, and the 
district military authorities, were state officers. 

The Imperial Chancellor. — The Empire had, neverthe¬ 
less, its own distinct administrative organs, through which it 
took, whether through oversight simply or as a direct execu¬ 
tive, a most important and quite controlling part in affairs; and 
the head and centre of its administration was the Imperial Chan¬ 
cellor, an officer who has no counterpart in any other constitu¬ 
tional government. 

(1) Looked at from one point of view, the Chancellor may be said 
to have been the Emperor’s responsible self. If one could clearly 
grasp the idea of a responsible constitutional monarch standing be¬ 
side an irresponsible constitutional monarch from whom his au¬ 
thority was derived, he would have conceived the real, though not 
the theoretical, character of the Imperial Chancellor of Germany. 
He was the Emperor’s responsible proxy. Appointed by the 
Emperor and removable at his pleasure, he was still, while he re¬ 
tained his office, virtually supreme head of the state, standing be¬ 
tween the Emperor and the Reichstag , as the butt of all criticism 
and the object of all punishment. He was not a responsible 
minister in the English or French sense (pages 160 and 196); there 


460 


THE GOVERNMENTS OF GERMANY. 


was, strictly speaking, no 1 parliamentary responsibility’ in Ger¬ 
many. In many respects, it is true, the Chancellor occupied 
with regard to the Reichstag much the same position that a 
French or English ministry holds towards the representatives of 
the people; he must give an account of the administration to 
them, when a debate was forced upon him. But an adverse vote 
did not unseat him. His ‘responsibility’ did not consist in a 
liability to be forced to resign, but consisted simply in amena¬ 
bility to the laws. He did not represent the majority in the 
j Reichstag, but he must obey the law. 

This ‘ responsibility ’ of the Chancellor’s, so far as it went, 
shielded, not the Emperor only, but also all other ministers. 
“ The constitution of the Empire knows only a single administra¬ 
tive chief, the Imperial Chancellor.” 1 So all-inclusive was the 
representative character of the chancellorship that all powers not 
specifically delegated to others rested with the Chancellor. Thus, 
except when a special envoy was appointed for the purpose, he 
conducted all negotiations with foreign powers. He was also 
charged with facilitating the necessary intercourse between the 
Bundesrat and the Reichstag. 

The Chancellor’s relation to the Reichstag was typified in his 
duty of submitting to it the annual budget of the Empire. 

(2) Still further examined, the chancellorship is found to 
have been the centre, not only, but also the source of all depart¬ 
ments of the administration. Theoretically at least the chancel¬ 
lorship was the administration: the various departments were 
offshoots from it, differentiations within its all-embracing sphere. 
In the official classification adopted in German commentaries on 
the public law of the Empire, the Chancellor constituted a class 
by himself. 2 There were (1) The Imperial Chancellor, (2) Ad¬ 
ministrative officials, (3) Independent (i.e., separate) financial 
officials, and (4) Judicial officials. The Chancellor dominated the 
entire imperial service. 

(3) A third aspect of the Chancellor’s abounding anthority was 
his superintendency of the administration of the laws of the 
Empire by the states. With regard to the large number of 
imperial laws which were given into the hands of the several 

1 Laband, p. 67. 2 Laband, p. 56. 


THE GOVERNMENTS OF GERMANY. 


461 


states to be administered, the Empire could not only command what 
was to be done, but might also prescribe the way in which it should 
be done: and it was the duty of the Chancellor to superintend 
the states in their performance of such behests. In doing this he 
did not, however, deal directly with the administrative officials of 
the states, but with the state governments to whom those officials 
were responsible. In case of conflict between the Chancellor and 
the government of a state, the Bundesrat decided. 

. The expenses of this administration of federal laws by the states fell 
upon the treasuries of the states themselves, not upon the treasury of the 
Empire. Such outlays on the part of the states constituted a part of 
their contribution to the support of the imperial government. The 
states were required to make regular reports to the imperial government 
concerning their conduct of imperial administration. 

(4) When acting in the capacity of chairman of the Bundesrat , 
the Chancellor was simply a Prussian, not an imperial, official. 
He represented there, not the Emperor, for the Emperor as Em¬ 
peror had no place in the Bundesrat, but the king of Prussia. 
During most of the time since the institution of the Empire the 
Chancellor was also chief minister of Prussia as president of the 
Council. Theories aside, the Prussian government guided im¬ 
perial affairs through the Chancellor. 

The Vice-Chancellorship. — The laws of the Empire made 
a double provision for the appointment of substitutes for the 
Chancellor. As already said, in connection with his presidency 
of the Bundesrat he could himself appoint a substitute, for whose 
acts he was, however, responsible. In addition to this a law of 
March 17, 1878, empowered the Emperor to appoint a responsible 
Vice-Chancellor. This appointment was made, upon the motion 
of the Chancellor himself, for the administration of all or any 
part of his duties, when he was himself hindered, even by an 
overweight of business, from acting; the Chancellor himself 
judging of the necessity for the appointment. The Chancellor 
might, at any time, too, resume any duties that might have been 
entrusted to the Vice-Chancellor, and himself act as usual. He 
was thus, in effect, ultimately responsible in every case, — even 
for the non-exercise of his office. The vice-chancellorship was 
only a convenience. 


462 


THE GOVERNMENTS OF GERMANY. 


Foreign Affairs. — The full jurisdiction over the foreign 
affairs of the Empire conferred upon the imperial government by 
the constitution of the Empire did not exclude the several states 
from having their own independent dealings with foreign courts : 
it only confined them in such dealings to matters which concerned 
them without immediately affecting imperial interests. The 
subject of extradition, for instance, of the furtherance of science 
and art, of the personal relations and private affairs of dynasties, 
and all matters which affect the interests of private citizens indi¬ 
vidually, were left to be arranged, if the states desired, inde¬ 
pendently of the imperial Foreign Office. The states, therefore, 
had as full a right to send ambassadors for their own constitutional 
purposes as the Empire had to send ambassadors for its greater 
objects affecting the peace and good government of Europe. It 
might thus often happen that the Empire and several of the states 
of the Empire were at the same time separately represented at 
one and the same court. In the absence of special representatives 
from the states, their separate interests were usually cared for by 
the representative of the Empire. The department of the impe¬ 
rial administration which had charge of the international rela¬ 
tions of the Empire was known as the Foreign Office simply (das 
Ausivartige Amt). 

Internal Affairs. —The general rule of government in 
Germany was that administration was left for the most part to 
the states, only a general superintendence being exercised by 
the imperial authorities. But the legislative sphere of the 
Empire was very much wider than is the legislative sphere of 
the central government in any other federal state. Imperial 
statutes prescribed in very great variety the laws which the states 
administered, and constantly extended farther and farther their 
lines of prescription. From the Empire emanated not only laws 
which it was of the utmost moment to have uniform, — such as 
laws of marriage and divorce, — but also laws of settlement, poor 
laws, laws with reference to insurance, and even veterinary regu¬ 
lations. Its superintendence of the local state administration of 
imperial laws, moreover, was of a very active and systematic sort. 

Weights and Measures.—Imperial methods of supervision are 
well illustrated in the matter of weights and measures. The laws with 


THE GOVERNMENTS OF GERMANY. 


463 


reference to the standard weights and measures to be used in commerce 
were passed by the imperial legislature and administered by state officials 
acting under the direction and in the pay of the state authorities ; but 
thorough control of these state officials was exercised from Berlin. There 
was at the capital a thoroughly organized Weights and Measures Bureau 
(Normal-Eichungskommission ), which supplied standard weights and 
measures, superintended all the technical business connected with the 
department, aud was in constant and direct association with the state offi¬ 
cials concerned, to whom it issued from time to time specific instructions. 

Money. —With regard to money the control of the Em¬ 
pire was, as might be expected, more direct. The states were for¬ 
bidden to issue paper money, and imperial legislation alone 
determined money-issue and coinage. But even here the states 
were the agents of the Empire in administration. Coining was 
entrusted to state mints, the metal to be coined being distributed 
equally among them. This, however, was not really state coinage. 
The state mints were the mere agents of the imperial government: 
they coined only so much as they were commanded to coin; they 
operated under the immediate supervision of imperial commis¬ 
sioners ; and the costs of their work were paid out of the imperial 
treasury. They were state mints only in this, that their officers 
and employees were upon the rolls, not of the imperial, but 
of the state civil service. The Empire would doubtless have 
had mints of its own had these not already existed ready to 
its hand. 

Railways, r— The Empire made comparatively little use of 
the extensive powers granted it in this field by its constitution. 
It could virtually control; but it in practice only oversaw and 
advised. The Imperial Railway Office ( Reichs-Eisenbahnami ) 
had advisory rather than authoritative functions; its principal 
supervisory purpose was to keep the various roads safe and ade¬ 
quately equipped. Some railways the Empire itself owned, but 
most of the lines were owned by the several states; and the 
states were bound by the constitution to administer them, not in¬ 
dependently or antagonistically, but as parts of a general German 
system. Here again the Empire refrained from passing any laws 
compelling obedience to the constitution on this point; possibly 
because the states assiduously complied of their own accord. 


464 


THE GOVERNMENTS OF GERMANY. 


Using the Bundesrat for informal conference on the matter 
(though the Bundesrat has no constitutional authority in railway 
administration) they effected satisfactory cooperative arrange¬ 
ments. 

The railways of Bavaria stood upon a special footing: for 
Bavaria came into the federation on special terms, reserving an 
independence much greater than the other states retained in the 
management of her army, her railways, and her posts and tele¬ 
graphs. 

For military purposes, the Empire could command the services 
of the railways very absolutely. It was as aids to military ad¬ 
ministration primarily that their proper construction and efficient 
equipment were insisted on through the Imperial Railway Office. 
Even the Bavarian railroads could be absolutely controlled when 
declared by formal imperial legislative action to be of military 
importance to the Empire. With reference to any but the Bava¬ 
rian roads a simple resolution of the Bundesrat alone sufficed for 
this declaration. 

The duty of the states to administer their roads as parts of a 
single system was held to involve the running of a sufficient num¬ 
ber of trains to meet all the necessities of passenger and freight 
traffic, the running of through coaches, the maintenance of proper 
connections, the affording of full accommodations, etc. 

At times of scarcity or crisis, the Emperor could, with the ad¬ 
vice of the Bundesrat , prescribe low tariffs, within certain limits, 
for the transportation of certain kinds of provisions. 

Posts and Telegraphs. — Here the administrative arrange¬ 
ments of the Empire were somewhat complicated. Bavaria and 
Wurttemberg retained their own systems and a semi-independence 
in their administration, just as Bavaria did with regard to her 
railways also; being subject to only so much of imperial regula¬ 
tion as brought their postal and telegraphic services into a neces¬ 
sary uniformity with those of the Empire at large. In most of 
the states the imperial authorities directly administered these 
services; in a few —Saxony, Saxe-Altenburg, the two Mecklen- 
burgs, Brunswick, and Baden — there was a sort of partnership 
between the states and the Empire. The principle throughout 
was, however, that the Empire controlled. 


THE GOVERNMENTS OP GERMANY. 


465 


Patents, etc.— Besides the administrative activities with refer¬ 
ence to internal affairs which have been mentioned, the Empire issued 
patents, granted warrants to sea-captains, naval engineers, steersmen, and 
pilots ; and examined sea-going vessels with a view to testing their sea¬ 
worthiness. 

Military and Naval Affairs. — The Empire as such had 
a navy, but no troops. Prussia was the only state of the Empire 
that ever maintained a naval force, and she freely resigned to 
the Empire, which she virtually controls, the exclusive direction 
of naval affairs. But the case was different, in form at least, 
with the army. That was composed of contingents raised, equipped, 
drilled, and, in all but the highest commands, officered by t*he 
states. This at least was the constitutional arrangement: the 
actual arrangement was different. Only Bavaria, Saxony, and 
Wiirttemberg really maintained separate military administra¬ 
tions. The other states handed over their military prerogatives 
to the king of Prussia. Bavaria’s privileges extended even to 
the appointment of the commander of her contingent. The Em¬ 
peror was commander-in-chief, however, appointing all the higher 
field officers ; and the imperial rules as to the recruitment, equip¬ 
ment, discipline, and training of troops and as to the qualifications 
and relative grading of officers were of the most minute kind and 
were imperative with regard to all states alike. 

Finance. — The expenses of the Empire were met partly 
from imperial revenues, and partly from contributions by the 
states. The Empire levied no direct taxes; its revenues came 
principally from customs duties and excises, certain stamp taxes, 
the profits of the postal and telegraph system, of imperial rail¬ 
ways, of the imperial bank, and like sources. So far as these did 
not suffice, the states assisted, being assessed according to popu¬ 
lation. And here, again, the states undertook much of the actual 
work of administration: the customs officials, for example, being 
state officers acting under imperial supervision. The financial 
bureaux, like all other branches of the imperial government, were 
immediately subordinated to the Imperial Chancellor. 

Justice. — In the administration of justice, as in so many 
other undertakings of government, the Empire superintended, 
merely, and systematized. The state courts were also courts of 


466 


THE GOVERNMENTS OF GERMANY. 


the Empire: imperial law prescribed for them a uniform organi¬ 
zation and uniform modes of procedure: and at the head of the 
system stood the Imperial Court ( Reiclisgericlit) at Leipzig, cre¬ 
ated in 1877 as the supreme court of appeal. The state govern¬ 
ments appointed the judges of the state courts and determined 
the judicial districts; but imperial laws fixed the qualifications 
to be required of the judges, as well as the organization that the 
courts should have. The decisions of the court at Leipzig gave 
uniformity to the system of law. 

Citizenship. — Every citizen of a state of the Empire 
was a citizen of the Empire also and enjoyed the rights and im¬ 
munities of a citizen in every part of the Empire ; but citizenship, 
though rooted in the states by way of locus, was conferred only 
upon terms fixed by federal law. The Empire determined in 
nearly all respects this fundamental question of civil status; and 
every citizen was thereby made the more directly and immediately 
a citizen of the Empire. It remained, nevertheless, the theory 
of the relationship that citizenship was primarily state citizen¬ 
ship and that citizenship of the Empire flowed out of citizenship 
of the state. A law of the Empire of 1913 provided that a Ger¬ 
man, becoming naturalized in another country, might neverthe¬ 
less retain his German citizenship. The oath of allegiance to his 
adopted country was not to hinder him from being still a loyal 
subject of the Fatherland. 

The Government of Prussia. 

The organization of government in Prussia had, for the student 
of German political institutions, a double interest and importance. 
In the first place, Prussia’s king was Germany’s Emperor ; Prus¬ 
sia was the presiding and controlling state of the Empire; and 
many of her executive bureaux were used as administrative agen¬ 
cies of the Empire. Her government was in a very real sense 
an organ and representative of the imperial government. In the 
second place, Prussia’s administrative system served as a type 
of the highest development of local government in Germany. 

Stages of Administrative Development. — Until the time 
when she emerged from the long period of her development as 
the Mark Brandenburg and took her place among the great mili- 


THE GOVERNMENTS OF GERMANY. 


467 


tary states of Europe, Prussia’s administrative organization was 
of a very crude sort, not much advanced beyond the mediaeval , 
pattern. Later, under the Great Elector and his immediate suc¬ 
cessors, though well out of her early habits, she was still little 
more than a mere military state, and her administration, though 
more highly developed, had almost no thought for anything but 
the army. Only since the close of the Napoleonic wars has her 
system of government become a type of centralized civil order 

Process of Centralization. — The Great Elector reduced 
the feudal Estates of the Mark to complete subjection to his 
will. He it was, also, who began the policy by which local 
affairs as well were to be centralized. In the towns the pro¬ 
cess was simple enough. In them there was little effective ob¬ 
struction : the channels were already open. There the military 
authorities, directly representative of the Elector, had all along 
dictated in police and kindred matters; direct ordinances of the 
Elector, moreover, regulated taxation and the finances, and even 
modified municipal privileges at pleasure. It did not take long, 
such being the system already established, to make burgomasters 
creatures of the royal will, or to put effective restrictions upon 
municipal functions. 

In the provinces, however, it was quite another matter 
to crush out local privilege. The Prussia of the Great Elector 
and his successors was no longer the Mark Brandenburg, but the 
extended Prussia of conquest. There were many Estates to deal 
with in the several principalities of the kingdom; and these 
Estates, exercising long-established prerogatives, very stubbornly 
contested every step with the central power. They were the 
channels through which the sovereign’s will had at first to 
operate upon provincial government, and they were by no means 
open channels. They insisted, for a long time with considerable 
success, that the chief officers of the provinces should be nomi¬ 
nated by themselves; and they nominated natives, men of their 
own number. Only by slow and insidious processes did the 
Elector, or his successors the kings of Prussia, make out of these 
representative provincial officials subservient royal servants. 

First Results of Centralization. — The system pursued in 
the process of centralization, so far as there was any system, 


468 


THE GOVERNMENTS OF GERMANY. 


was a system by which central control was grafted upon the old 
growths of local government derived from the Middle Ages. The 
result was of course full of complexities and compromises. In 
the vast royal domains bailiffs administered justice and police, as 
did Schulzen in the manorial villages. In the larger rural areas 
a Landrath, or sheriff, “ nominated by the county nobility, usu¬ 
ally from among their own number, and appointed by the king,” 
saw to the preservation of order, to the raising of the levies, to 
tax collection, and to purveyance. In the towns there was a 
double administration. Magistrates of the towns’ own choosing 
retained certain narrow local powers, constantly subject to be 
interfered with by the central authority; but royal tax-commis¬ 
sioners, charged with excise and police, were the real rulers. 
Above this local organization, as an organ of superintendence, 
there was in each province a ‘Chamber for War and Domains,’ 
which supervised alike the Landrath and the city tax-commis¬ 
sioners. 

A War and Domains Chamber consisted of a president, a “ director 
or vice-president, and a number of councillors proportioned to the size, 
populousness, or wealth of the province.” The president of a chamber 
was “ expected to make periodical tours of inspection throughout the 
province, as the Landratlis did throughout their counties.” In the 
despatch of business by a Chamber, the councillors were assigned special 
districts, special kinds of revenue, or particular public improvements for 
their superintendence or administration, the whole board supervising, 
auditing, etc. 1 

Justice and Finance. —Much progress towards centraliza¬ 
tion was also made by the organization of justice and finance. 
“ The administration of justice was in the hands of boards, the 
Regierungen, or governments, on the one hand [the whole organi¬ 
zation of administration in Prussia being characteristically col¬ 
legiate], and the courts on the other.” 

In finance also there was promise of systematization. 
During the period preceding the Napoleonic wars, when Prussia 
figured as a purely military state, the chief concern of the central 
government was the maintenance and development of the army. 
The chief source of revenue was the royal domains: the chief 

1 Tuttle, History of Prussia, Vol. III., pp. 107-109, 


THE GOVERNMENTS OF GERMANY. 


469 


need for revenue arose out of the undertakings of war. 1 There 
were, therefore, at the seat of government two specially promi¬ 
nent departments of administration, the one known as the ‘Gen¬ 
eral War Commissariat,’ and having charge of the army, the 
other known as the ‘General Finance Directory,’ commissioned 
to get the best possible returns from the domains; and here and 
there throughout the provinces there were ‘War Commissariats 9 
and ‘Domains Chambers’ which were the local branches of the 
two great central departments. 2 These two departments and 
their provincial ramifications were, however, instead of being 
coordinated, kept quite distinct from each other, clashing and 
interfering in their activities rather than cooperating. 

Fusion of Departments of War and Domains.—Such at 
least was the system under the Great Elector and his immediate 
successor, Frederic I., if system that can be called which was 
without either unity or coherence. Frederic William I. united 
War and Domains under a single central board, to be known as 
the ‘General Supreme Financial Directory for War and Domains,’ 
and brought the local war and domains boards together in the 
provinces as Chambers for War and Domains. Under this ar¬ 
rangement the various ‘ war councillors ’ who served the provin¬ 
cial Chambers were charged with a miscellany of functions. 
Besides the duties which they exercised in immediate connection 
with military administration, they were excise and police com¬ 
missioners, and exercised in the cities many of the civil functions 
which had formerly belonged to other direct representatives of 
the Crown. In the rural districts the Chambers were served in 
civil matters by the several Landratlie. 

Differentiation of Central Bureaux. — This arrangement 
speedily proved as cumbrous as the name of its central organ, and 
an internal differentiation set in. The General Directory sepa¬ 
rated into Committees; and, as time went on, these committees 
began to assume the character of distinct Ministries,—though 
upon a very haphazard system. Frederic the Great further con¬ 
fused the system by creating special departments immediately 

1 The army consumed about five-sevenths of the entire revenue. 

2 Seeley, Life and Times of Stein , Vol. I., Chap. II. Also Tuttle, Vol. I., 
pp. 421, 422. 


470 


THE GOVERNMENTS OF GERMANY. 


dependent upon himself and a special cabinet of advisers having 
no connection with the General Directory. He was himself the 
only cohesive element in the administration: it held together 
because clasped entire within his hand. 

Reforms of Stein and Hardenberg. — Order was at last 
introduced into the system through the influence of Baron vom 
Stein and the executive capacity of Count Hardenberg, the two 
most eminent ministers of Frederic William III., who together 
may be said to have created the present central administration 
of Prussia. Prussia owes to the genius of Stein, indeed, the 
main features of both her central and her local organization. 
Her central organization is largely the direct work of his hands; 
and her local organization derives its principles from his thought 
not only, but also from the provisions of the Ordinance by 
which he reconstructed the administration of the towns. 

Reform of Local Government before 1872.—The county 
law ( Kreisordnung ) of the 13 December, 1872, has been called 
the Magna Charta of Prussian local government. Upon it all 
later changes and modifications rest. Between the period of 
Stein’s reforms and the legislation of 1872 the organization of 
local government was substantially as follows : 1 The provinces 
were divided into 1 Government Districts,’ as afterwards, the Gov¬ 
ernment Districts into ‘ Circles ’ or Counties. An administrative 
Board established in the Government District was then, as after¬ 
wards, the vital organ of local administration. In the province 
there was also a board, exercising general supervisory powers, the 
eye of the central bureaux in the larger affairs of administration, 
the affairs, that is, which extended beyond the area of a single 
Government District; and, as the chief officer of the province, a 
‘ Superior President’ of influential position and function. But 
alongside of this quite modern machinery stood the old provincial 
Estates (revived in 1853), representing, not the people, but the 
social orders of a bygone age, and possessing certain shadowy 
powers of giving advice. In the ‘ Circle ’ or County, there was 
still the Landrath, as formerly, appointed from a list of local 

1 See R. B. D. Morier’s essay on Local Government in Germany, in the 
volume of Cobden Club Essays for 1875. 


THE GOVERNMENTS OF GERMANY. 


471 


landed proprietors, and associated with the ‘Estates of the Circle,’ 
a body composed of the county squires and a few elected repre¬ 
sentatives from the towns and the rural townships, —a body of 
antiquated pattern recalled to life, like the Estates of the prov¬ 
ince, in 1853. In the towns, which had directly received the 
imprint of Stein’s reforming energy and sagacity, administration 
was conducted by boards of magistrates chosen by popular coun¬ 
cils and associated with those councils in all executive business 
by means of a joint-committee organization, the burgomasters 
being presidents rather than chief magistrates. 

Landgemeinde and Manors.—Besides these areas of adminis¬ 
tration there were rural communes ( Landgemeinde ) still connected, quite 
after the feudal fashion, with adjacent or circumjacent manors, their gov¬ 
ernment vested in a Schulze and two or more Schoffen (sheriffs or justices), 
the former being appointed either by the lord of the manor, or, if the 
village was a free village, as sometimes happened, by the owner of some 
ancient freehold within the commune with which manorial rights had 
somehow passed. The commune had, besides, either a primary or an 
elective assembly. The communes were often allowed, under the super¬ 
vision of the official board of the Government District, to draw up charters 
for themselves, embodying their particular local laws and privileges. 
Within the manors police powers, poor-relief, the maintenance of roads, 
etc., rested with the proprietor. Local government was within their 
borders private government. 

Reform of 1872. — The legislation of 1872 took the final 
steps towards getting rid of such xdeces as remained of the anti¬ 
quated system. It abolished the hereditary jurisdiction of the 
manor and the dependent office of Schulze , and established in 
place of the feudal status an equal citizenship of residence. In 
place of the Estates of the province and county it put real repre¬ 
sentative bodies. It retained the Landrath , but somewhat cur¬ 
tailed his powers in the smaller areas within the Circle, and 
associated with him an effective administrative board, of which 
he became little more than president. It carried out more 
thoroughly than before in the various areas the principle of 
board direction, integrating the lesser with the greater boards, 
and thus giving to the smaller areas organic connection with 
the larger. It reformed also the system of local taxation. 


472 


THE GOVERNMENTS OF GERMANY. 


It is upon this legislation that the system of local government 
later obtaining in Prussia was erected. 1 

The Central Executive Departments. — Stein’s scheme for 
the development of the central organs of administration brought 
into existence five distinct ministries, which no longer masquer¬ 
aded as committees of a cumbrous General Directory, and whose 
functions were distributed entirely upon a basis of logical distinc¬ 
tion, not at all upon any additional idea of territorial distribution. 
These were a Ministry of Foreign Affairs, a Ministry of the 
Interior, a Ministry of Justice, a Ministry of Finance, and a 
Ministry of War. This, however, proved to be by no means a 
final differentiation. The Ministry of the Interior was at first 
given a too miscellaneous collection of functions, and there split 
off from it in 1817 a Ministry of Ecclesiastical, Educational, and 
Sanitary Affairs, and in 1848 a Ministry of Trade, Commerce, and 
Public Works and a Ministry of Agriculture. In 1878 a still 
further differentiation took place. The Ministry of Finance, re¬ 
taining distinct reminiscence of its origin in the administration 
of the royal domains, had hitherto maintained a Department of 
Domains and Forests. That department was in 1878 transferred 
to the Ministry of Agriculture. At the same time the Ministry 
of Trade, Commerce, and Public Works was divided into two, a 
Ministry of Trade and Commerce and a Ministry of Public 
Works. 

There were, then, nine ministries : (1) a Ministry of Foreign 
Affairs (Stein, 1808); (2) a Ministry of the Interior (1808); 
(3) a Ministry of Ecclesiastical, Educational, and Sanitary Affairs 
(1817); (4) a Ministry of Trade and Commerce (1848) ; (5) a 
Ministry of Agriculture (1848), Domains, and Forests (1878) ; 
(6) a Ministry of Public Works (1878); (7) a Ministry of Justice 
(1808) ; (8) a Ministry of Finance (1808) ; and (9) a Ministry of 
War (1808). 

The Council of State. — Most of these ministries were 
created before Prussia had any parliamentary system, and when, 
consequently, there was no instrumentality in existence through 
which there could be exercised any legislative control over the 
executive. Stein would have revived for the exercise of some 
1 Morier, p. 434. 


THE GOVERNMENTS OF GERMANY. 


473 


such function the ancient Council of State ( Staatsrath ) founded 
by Joachim Friedrich in 1604, which had at first presided over 
all administration but whose prerogatives of oversight and 
control had gradually decayed and disappeared. This council, 
which bore a general family resemblance to the English Privy 
Council, had a mixed membership made up in part of princes of 
the blood royal, in part of certain civil, military, and judicial 
officials serving ex officio, and in part of state officials specially 
and occasionally summoned. It was Stein’s purpose to rehabili¬ 
tate this body, which was in a sense representative of the classes 
standing nearest to government and therefore presumably best 
qualified to test methods, and to set it to oversee the work of the 
ministers: to serve as a frame of unity in the administration 
without withdrawing from the ministers their separate responsi¬ 
bility and freedom of movement. This part of his plan was not, 
however, carried out, and the Council of State, though still exist¬ 
ing, a shadow of its former self, never regained its one-time 
prominence in administration. 

Staatsministerium. — Instead of adopting Stein’s plan, 
Count Hardenberg integrated the several ministries by establish¬ 
ing the Ministry of State , or College of Ministers ( Staatsminis¬ 
terium ), which stood in much the same relation to Prussian 
administration that the French Council of Ministers (page 157) 
occupies towards administration in France, though it in some 
respects resembled also the French Council of State (page 173). 
It was composed of the heads of the several ministries and met, 
once a week or oftener, for the consideration of all matters which 
concerned all the executive departments alike, to discuss proposed 
general laws or constitutional amendments, to adjust conflicts 
between departments, to hear reports from the ministers as to 
their policy in the prosecution of their separate work, to exercise 
a certain oversight over local administration, to concert measures 
to meet any civil exigency that might arise, etc. It served to 
give unity and coherence to administration. 

The Supreme Chamber of Accounts. — The same purpose 
was served by the Supreme Chamber of Accounts ( Oberrechnungs - 
hammer) and by the Economic Council ( Volksivirthschaftsrath ). 
The Supreme Chamber of Accounts was founded in 1714 by 


474 


THE GOVERNMENTS OF GERMANY. 


Frederic William I. Its members had the tenure and responsi¬ 
bility of judges. Its president was appointed by the Crown on the 
nomination of the Ministry of State; its other members were ap¬ 
pointed by the Crown upon the nomination of its president, 
countersigned by the president of the Ministry of State. It con¬ 
stituted a distinct branch of the government, being subordinate, 
not to the Ministry of State, but directly responsible to the Crown. 
Its duty was the careful oversight and revision of the accounts of 
income and expenditure from all departments; and the oversight 
of the state debt and of the acquisition and disposition of prop¬ 
erty by the state. It watched, in brief, the detailed adminis¬ 
tration of the finances, and was the judicial guardian of the laws 
concerning revenue and disbursement. 

The Economic Council. — The Economic Council considered 
proposals for laws or ordinances affecting weighty economic in¬ 
terests which fell within the domains of the three ministries of 
Trade and Commerce, of Public Works, and of Agriculture. Such 
proposals, as well as the proposals for the repeal of such laws 
and ordinances, might be submitted to its debate before going to 
the king for his approval. It was also privileged to consider the 
question how Prussia’s votes should be cast upon such matters in 
the Bundesrat. Of course, however, its part in affairs was merely 
consultative. It was composed of seventy-five members appointed 
by the king for a term of five years, forty-five of this number 
being appointed upon the nomination of various chambers of com¬ 
merce, mercantile corporations, and agricultural unions. 

The Ministers in the Legislature. — The king — or, more 
properly, the Administration — was represented in the legislative 
houses by the ministers, who need not be members in order to 
attend and speak on the public business. 

The Landtag : the House of Lords. — The Prussian Land¬ 
tag , or Legislature, consisted of two houses, a House of Lords 
(Herrenhaus) and a House of Kepresentatives ( Abgeordnetenhaus ). 
The House of Lords might better be described as a house of classes. 
It contained not only hereditary members who represented rights 
of blood, but also life members who represented landed properties 
and great institutions, and officials who represented the civil hier¬ 
archy. There sat in it princes of the blood royal nominated to 


THE GOVERNMENTS OF GERMANY. 


475 


membership by the king; the heads of families once royal whose 
domains had been swallowed up by Prussia; certain greater noble¬ 
men appointed by the Crown, together with eight others elected by 
the resident landowners of the provinces; the four chief officials 
of the province of Prussia (the Supreme Burggraf, the High Mar¬ 
shal, the Grand Master of the Teutonic Order, and the. Chan¬ 
cellor) ; and a great number of life members appointed by the 
king upon the presentation of various bodies : certain evangelical 
foundations, namely, certain colleges of counts, and of land¬ 
holders of great and ancient possession, the nine universities, 
and forty-three cities which received the right of nomination. 
The king could, besides, issue special summons to sit in the 
House of Lords to such persons as he thought worthy. There 
was no limit placed upon the number of members, — the only 
restriction concerned age: members must be at least thirty 
years old. The number of members was about 300. Of these 
quite one-third were of the landed nobility, and almost as many 
more were the nominees of the landed classes ; so that the House 
stood for the loyalty to the Crown and opposition to liberal 
change. 

The House of Representatives. — Though in a sense repre¬ 
senting every Prussian twenty-five years of age who was not 
specially disqualified to vote, it was not constituted by a direct 
popular franchise, or even by an equal suffrage. The vote was in¬ 
direct and was proportioned to taxable property. The country 
was divided into districts ; the qualified voters of each district 
were divided into three classes in such a way that each class 
should represent one-third of the taxable property of the district; 
each of these classes selected by vote a third of the number of 
electors to which the district was entitled; and the electors so 
chosen elected the members of the House of Representatives. 

The Electoral System. — One elector was chosen for every 
two hundred and fifty inhabitants; the voting was not by the 
ballot, but was public, and an absolute majority of the electors was 
required to elect. The total number of members of the House 
was 443. The term was five years. Any Prussian who was thirty 
years of age and in full possession of civil rights might be chosen. 
In case a vacancy occurred in the House, no choice of electors 


476 


THE GOVERNMENTS OE GERMANY. 


was necessary. Once chosen, the electors were competent to act 
throughout the legislative term. 

It need hardly to he remarked that the division of the primary 
voters into classes according to the amount of taxes they pay gave 
a preponderance to wealth. The three classes were of course very 
unequal in numbers. It required a comparatively small number 
of rich men to represent one-third of the taxable property in a 
district; it took a considerably larger number of the well-to-do 
to represent another third ; and the last third was represented by 
the great majority of the inhabitants of the district. For the 
classes were not constituted with a view to distributing the small 
taxpayers and equalizing the classes numerically. Those who 
padd most taxes constituted the first class; those who paid less, 
the second ; those who paid least or none, the third; and it might 
thus very well happen that a very small number of persons 
elected a third of the electors. 

Equality and Competence of the House. — The consent 
of both Houses was necessary to the passage of a law, and they 
stood upon a perfect equality as regards also the right of initiative 
in legislation, — except that all financial measures must originate 
in the lower house, and that the upper house could pass upon the 
budget, which must be presented first to the House of Represent¬ 
atives, only as a whole. The Lords could not amend the budget 
in part: they must accept or reject it entire. 

The King s Power of Adjournment and Dissolution.—The king 
could adjourn the House of Representatives for a period not exceeding 
thirty days, once during any one session without its consent. He could 
also dissolve it. When a dissolution was resorted to he must order a new 
election within sixty days, and the newly elected House must assemble 
within ninety days. (Compare p. 155.) 

Local Government. — The organization of local govern¬ 
ment in Prussia is [rendered complex by a mixture of historical 
and systematic elements : it is compounded of old and new, — of 
the creations of history and the creations of Stein and Gneist. 
Stein’s hand is even more visible in local organization in Prussia 
than in the organization of the central ministries. More conserva¬ 
tive than the Constituent Assembly and Napoleon in France, he 
did not sweep away the old provinces of Prussia, whose bounda- 


THE GOVERNMENTS OF GERMANY. 


477 


ries, like those of the French provinces of the old regime , were 
set deep in historical associations. The twelve provinces were 
given a place, — a function of superintendence, — in the new sys¬ 
tem established. The country was, indeed, divided into Districts 
(. Bezirke ) corresponding in general character and purpose with 
the French Departments ; but these Districts were grouped under 
a superintendent provincial organization. There were, therefore, 
in Prussian local organization (1) the Province, (2) the Govern¬ 
ment District, (3) the Circle ( Kreis ) or County, and (4) the town¬ 
ship and the town. The township and the town were coordinate, 
standing in the same rank of the series. 

The usual organs of local government throughout all the series 
of the Prussian system were “ first, a representative body with 
an exclusive control over the economic portion of the communal 
business; secondly, an executive board with an exclusive con¬ 
trol over the public portion of the communal business; thirdly, 
mixed committees, composed of members of both bodies, for the 
ordinary management of the affairs of the community; fourthly, 
the division of the communal area into administrative districts 
under overseers responsible to the executive board.” 1 

The Province. — There were in the Province two sets of 
governmental organs: one of which represented the state and its 
oversight, the other the Province and its self-government. 
(1) The state is represented by a Superior President and a Pro - 
vinzialrat associated with him. The original purpose in retain¬ 
ing the provincial organization was to secure broad views of 
administration through officials charged with the oversight of 
extended areas and so elevated above the near-sightedness of local 
routine and detail. Nearer to the particulars of local adminis¬ 
tration than the minister at Berlin, but not so near as the officials 
of the Government Districts, the provincial representatives of 
the state were charged with the care “ of all such affairs as concern 
the entire province or stretch beyond the jurisdiction of a single 
[district] administration.” 2 These were such matters as affect 

1 R. B. D. Morier, Cobden Club Essays (1875) on Local Government and 
Taxation , p. 433. 

2 Schulze, Das Staatsrecht des Konigreichs Preussen (in Marquardsen’s 
Handbuch ), p. 63. 


478 


THE GOVERNMENTS OF GERMANY. 


imperial interests or the whole Prussian state; the concerns of 
public institutions whose functions extend beyond a District; 
insurance companies ; extensive plans of improvement; road and 
school management, etc. In exercising most of these functions 
the provincial authorities acted, however, not through officers of 
their own, but through the District Administrations. There lay 
with the Superior President, also, the duty of overseeing district 
administration, the provincial tax directors, and the general 
Commission for the regulation of the relations between landlords 
and tenants. He represented the central government, too, in all 
special, occasional duties, and under all extraordinary circum¬ 
stances. He had, besides, initial jurisdiction in cases of conflict be¬ 
tween District Administrations, or between such Administrations 
and specially commissioned officials not subject to their orders. 

The extraordinary powers of the ‘ Superior President ’ are illustrated 
by the fact that, in case of serious civil disturbance, of war or the danger 
of war, he was authorized to assume the whole authority of administra¬ 
tion, local as well as general, within the Province. In overseeing the 
District Administration, however, he had no executive, but only advisory, 
powers. He was merely the eye of the Ministries at Berlin, advising them 
of all matters needing their action. Like the French Prefect, he was the 
servant of all Ministries alike, though most directly and intimately asso¬ 
ciated with the Ministry of the Interior. The defect of the provincial 
organization in Prussia was said to be lack of vitality. Critics like Pro¬ 
fessor Gneist thought that it rendered the system of local government 
cumbrous without adding to its efficacy. It was too much restricted to 
gratuitous advice, and too little authorized to take authoritative action. 

The Provmzialrat, the administrative Council associated with the 
Superior President, consisted, besides the President or his repre¬ 
sentative as presiding officer, of one professional civil official of 
high rank, appointed by the Minister of the Interior, practically 
for life, and of five lay members chosen by the Provincial Committee 
for a term of six years. The assent of the Provinzialrat was 
necessary to every ordinance issued by the Superior President. 

(2) The organs representing the Province and its self-gov¬ 
ernment were the Provincial Landtag , the Provincial Committee, 
and the Landeshauptmann or Landesdirektor. In a Prussian law 
concerning local government the province is described as “a 
communal union established with the rights of a corporation for 


THE GOVERNMENTS OF GERMANY. 


479 


self-government of its own affairs.” 1 The provincial legislative 
body, the Landtag , was composed of representatives elected from 
the Circles or Counties by the Diets of the Circles: for, when 
looked at from the point of view of self-government, the Province 
was a union of Circles, not of Districts : the Districts were organs 
of the central government only. The functions of the Landtag 
lay within the narrow field of such matters as the apportionment 
of taxes among the Circles (which in their turn apportioned them 
among individuals), the examination of the local budget, the care 
of provincial property, and the election of certain officials,— 
though it was at liberty to take cognizance of anything that was 
of local concern. 

It might also, on occasion, give its opinion on hills concerning the 
Province and on other matters referred to it, for an expression of opinion, 
by the authorities at Berlin. The Superior President could be present at 
its sessions and could annul all acts in which it overstepped its jurisdiction. 
Its by-laws were subject to the Crown’s approval, as were also many of its 
votes of appropriation ; and the king might dissolve it. 

The Landtag elected the Provincial Committee and the Landes - 
hauptmann, who were the executive organs of provincial self- 
government. The Landeshauptmann and the Committee stood 
related to each other very much as do the Superior President and 
Provinzialrat , or the French Prefect and the Prefectural Council: 
the Landeshauptmann was the. executive, the Committee the ad¬ 
visory organ of local self-administration, though it in effect 
directed the action of the Landeshauptmann in most matters. 

The spheres of the representatives of the state and of the 
representatives of local self-government were quite sharply dis¬ 
tinguished in Prussia. The Provincial Committee and the 
Landeshauptmann had nothing to do with the general adminis¬ 
tration : that was altogether in the hands of the Superior Presi¬ 
dent and the Provinzialrat , who on their part had nothing to do 
with local self-government. The sphere of local self-government, 
though narrow, was somewhat more guarded against the constant 
interference of the central authorities in Prussia than in France. 
(Compare page 170.) 

i Schulze, Las Staatsrecht des Konigreichs Preussen (in Marquardsen’s 
Handbuch ), p. 85. 


480 


THE GOVERNMENTS OP GERMANY. 


The Government District ( Regierungsbezirk ). — Unlike the 
Province, the Government District had no organs of self-gov¬ 
ernment: it was exclusively a division of state administration. 
Its functionaries were the principal, — it may even be said the uni¬ 
versal, — agents of the central government in the detailed conduct 
of administration: they were charged with the local management 
of all affairs that fall within the sphere of the Ministries of the 
Interior, of Finance, of Trade and Commerce, of Public Works, 
of Agriculture, of Ecclesiastical and Educational Affairs, and of 
War, exclusive, of course, of such matters as were exceptionally 
entrusted to officers specially commissioned for the purpose. In 
brief, they served every ministry except the Ministry of Justice. 

Collectively the functionaries of the District were called the 
‘ Administration ’ ( Regierung ), and their action is for the most 
part collegiate, Le.\ through Boards. The exception to this rule 
concerned matters falling within the province of the Ministry of 
the Interior. That Ministry acted in the District, not through a 
board of officials, but through a single official, the President of 
the Administration (Regierung spriisident). In dealing with all 
other matters the action was collegiate ; but the Boards were not 
independent bodies: they were divisions ( Abteilungen ) of the 
‘ Administration ’ taken as a whole, and in certain affairs of gen¬ 
eral superintendence the ‘ Administration ’ acted as a single coun¬ 
cil ( im Plenum ). Each Board was presided over by a 1 Superior 
Administrative Councillor 9 (Oberregierungsrat ) , and that on Do¬ 
mains and Forests had associated with it a special functionary 
known as the Forest-master. The members of the ‘ Administra¬ 
tion ’ were all appointed by the central government, which placed 
upon the Boards whose functions require for their proper dis¬ 
charge a special training, certain so-called “ technical members ” : 
for instance, school experts, medical experts, road-engineers, and 
technically instructed forest commissioners. 

These ‘Administrations’ took the place of the old-time War 
and Domains Chambers, and which, like the Administrations, 
acted through Boards as a sort of universal agency for all de¬ 
partments of government. In 1883 the affairs of the Interior 
were given into the sole charge of the President of the Adminis¬ 
tration. Before that date they also were in the hands of a Board. 




THE GOVERNMENTS OF GERMANY. 


481 


“ Every head of a department, as well as every Rat and asses¬ 
sor, is bound each year to make a tour through a portion of the 
district, to keep an official journal of all he sees, to be afterwards 
preserved amongst the records of the Board, and thus to make 
himself practically acquainted with the daily life and the daily 
wants of the governed in the smallest details.” 1 (Compare page 
468.) 

The President of the Administration (. Regierungsprdsident ) was 
the most important official in the Prussian local service. Not 
only did he preside over the 1 Administration,’ the general and 
most important agency of local government; he was also equipped 
for complete dominance. He might, upon occasion, annul the 
decisions of the ‘ Administration ’ or of any of its Boards with 
which he did not agree, and, in case delay seemed disadvantageous, 
could himself command necessary measures. He could also, if he 
would, set aside the rule of collegiate action and arrange for the 
personal responsibility of the members of the ‘ Administration,’ 
whenever he considered any matter too pressing to await the meet¬ 
ing and conclusions of a Board, or, if when he was himself present 
where action was needed, he regarded such an arrangement as 
necesary. 2 In brief, he was the real governing head of local adminis¬ 
tration. The jurisdiction of the ‘Administration’ covered such 
matters as the state taxes, the churches, the schools, and the 
public domain. 

The District Committee. — Although the Government 
District was not an area of self-government, a certain part in the 
oversight of governmental action in the District was given to lay 
representatives chosen by the provincial agents of the people. 
A District Committee ( Bezirksausschuss) f composed of two pro¬ 
fessional members (one of whom must be qualified for judicial 
office, the other for the higher grades of the administrative 
service) appointed by the king for life, and of four members 
chosen by the Provincial Committee (page 479) for a term of 
six years, was allowed an oversight of such matters as it were 
thought best to put under lay supervision. The President of the 
Administration was ex officio a member of the Committee and usu- 

1 Morier ( Cobden Club Essays ), p. 422. 

2 Schulze (in Marquardsen), p. 64. 


482 


THE GOVERNMENTS OF GERMANY. 


ally presided over its sessions. All orders or arrangements which 
he wished to make with regard to local police were subject to its 
confirmation, and all questions regarding the control of subordh 
nate local authorities fell to it. More important than its admin¬ 
istrative functions were the judicial functions with which it was 
invested. Since 1883 the District Committee was the Adminis¬ 
trative Court of the District (page 488). When acting in 
this capacity the Committee was presided over by its judicial 
member, and the President of the Administration did not sit with 
it. The Government Districts numbered thirty-five, and were 
grouped within the twelve Provinces. 

The Circle (. Kreis ). — In the Circle, as in the Province, 
there emerged a double set of functions : there was the state admin¬ 
istration and, alongside of it, the narrower function of self-gov¬ 
ernment. This double set of functions was performed, however, 
by a single set of functionaries : by a professional officer known as 
the Landrat, associated with a Circle Committee (Kreisausschuss ), 
which acted by delegation for the Diet of the Circle ( Kreistag ), 
the consultative and supervisory authority. There were not, as 
in the Province, one council and one executive for the state, 
another council and another executive for the locality. 

The Landrat and the Circle Committee. — The Landrat 
stood upon a peculiar footing: his office was ancient and retained 
some of its historical features. Originally the Landrat repre¬ 
sented the landed gentry of various districts of Brandenburg ; he 
was appointed upon their nomination and in a sense represented 
their interests. In some parts of Prussia traces of this right of 
presentation to the office by the landowners remained; and in 
almost all parts of the kingdom the privilege of nomination 
was transferred to the Circle Diet, as heir of the control once 
exercised by the local lords of the soil. The Landrat was, there¬ 
fore, formally, the representative of the locality in which he 
officiated. In reality, however, he was predominately the agent of 
the state, serving both the District Administration and the de¬ 
partments at Berlin. He was appointed by the Superior President 
of the Province in which the Circle lay, and was always a profes¬ 
sional officer who had passed, by examination, into the higher 
grades of the civil service. He was chief of police within the 


THE GOVERNMENTS OF GERMANY. 


483 


Circle, and superintendent of all public affairs. The Circle Com¬ 
mittee was associated with him in the administration of his office 
and organized under his presidency. It consisted, besides himself, 
of six members chosen by the Circle Diet. It constituted the 
Administrative Court of the Circle (page 488), hearing appeals 
from the acts of subordinate officials as well as supervising ad¬ 
ministrative action. 

The Diet of the Circle represented, not the people, but groups 
of interests, — was based upon the economical and social re¬ 
lations of the people. Each Circle included all towns lying 
within it which had less than 25,000 inhabitants, and represen¬ 
tation in the Diet was divided between town and country. The 
country representation, in its turn, was divided between the rural 
Communes and the greater landowners. 

The cities elected representatives either singly or in groups ; if 
singly, through their magistrates and councils acting together ; if 
in groups, through electors who assembled under the Presidency 
of the Landrat. As 1 greater landowners’ were classed all those 
who paid, in their own right, 75 thalers annual land or building 
tax; and these were organized for electoral purposes in Unions 
( Verbande ). The rural Communes elected in groups through 
electors. The term of members of the Circle Diet was six years. 
Cities having more than 25,000 inhabitants constituted separate 
Circles, and combined in their town governments both Circle and 
Commune under the forms of city government. 

The Circle the Basis of Local Government. — A moment’s 
review of the electoral arrangements which underlay Prussian 
local government as outlined will show how literally the whole 
structure, so far as it was a system of self-government, rested 
upon the electoral organization of the Circle. The Diet of the 
Circle was the only representative body I have yet named which 
was chosen by the qualified voters of the locality : and it was not 
chosen directly. The larger towns elected their quota of members 
through their councils, while the smaller towns united and chose 
through electors. The rural communes elected in groups, through 
electors. The greater landowners sent their separate quota. And 
then from the Circle Diet, when once it was chosen, proceeded, in¬ 
directly, all the other lay bodies of administration in the larger 


484 


THE GOVERNMENTS OE GERMANY. 


areas. It nominated the Landrat, elected the Circle Committee, 
and united with the Diets of the other Circles of the Province 
in choosing the provincial Landtag. The provincial Landtag, in 
turn, elected the Landeshauptmann and the Provincial Committee. 
The Provincial Committee elected five out of the seven members 
of the Provinzialrat and four out of the six members of the 
District Committee. Each Provincial Committee chose, on an 
average, two District Committees. It was in only a very re¬ 
stricted sense a system of popular control in local affairs. It was 
a long way from the people to the District Committee. 

The Magisterial District ( Amtsbezirk ). — The rural Com¬ 
munes were grouped in Magisterial Districts containing each 
about fifteen hundred inhabitants ; and each District was presided 
over by a Peeve or Justice ( Amtsvorsteher or Amtsmann) who was 
appointed by the king upon the nomination of the Circle Diet, 
usually from among the landowners of the locality. The Reeve’s 
term was six years. He was given charge of the police of the 
District, and was entrusted with the administration of the laws 
for the relief of the poor and the preservation of health. As 
police commissioner he was put over the mayors of the several 
Communes within his district. He acted under the supervision 
of the Committee of the Circle. 

The Rural Commune (Landgemeinde). — The larger rural 
Communes acted through small representative assemblies or 
councils, while the less populous regulated their affairs by mass 
meeting. In some Communes the executive officer was known as 
‘ mayor,’ in others as ‘village judge,’ in still others as ‘ president.’ 
In most localities he was assisted by one or more aids or assessors. 
The electoral privilege was based upon the three-class system of 
voting already described, except that those who paid no taxes 
at all were usually excluded from the franchise. The powers of 
the Communes covered all matters of strictly local interest. 

The City Communes ( Stadtgemeinde ). — Among the City 
Communes there was great variety of organization. In some cities 
there was a single executive, — a single Burgomaster, — perhaps 
assisted by certain Boards; in others the Burgomaster had col¬ 
leagues ; in still others the magistracy was collegiate, — was itself a 
Board. In all there were councils more or less directly represent- 


THE GOVERNMENTS OF GERMANY. 


485 


ative of the people. In the cities, as in every other unit of local 
administration, the subjects of finance, police, and the military 
were largely controlled from Berlin; and in these branches of 
administration the city governments were agencies of the central 
government. They thus had a double character; they were at 
one and the same time representatives of the authorities at the 
capital and of the citizens at home. When acting as agencies of 
state administration they were, of course, responsible to the 
central Departments at Berlin. 

General Principles of Prussian Town Government. — Al¬ 
though without uniformity of structure, town government in 
Prussia had certain uniformities of principle at its basis. The 
mayor of a Prussian city was a trained official, taken from the 
professional service ; but he was not the Executive ; he was simply 
president of the executive. There was associated with him a 
board of Aldermen most of whose members were elected from the 
general body of citizens, to serve without salary, but an important 
minority of whose members were salaried officials who, like the 
mayor, had received a thorough technical training in their various 
branches of administration, and whose tenure of office was in effect 
permanent: and this board of Aldermen was the centre of energy 
and rule in city government. But it acted under check. A town 
council represented the citizens in the exercise of a control over 
the city budget, and citizens not of the Council as well as Coun- 
cilmen acted with the Aldermen in the direction of executive busi¬ 
ness. The Aldermen did their administrative work in Committees, 
and acted always in association with certain delegations of town- 
councilmen and certain ‘select citizens’ named by the council. 
In the wards of the larger towns the Aldermen commanded also 
the assistance of local committees of citizens, by whom the condi¬ 
tions and needs of the various districts of the town were familiarly 
known. Thus in the work of poor relief, in the guardianship of 
destitute orphans, in education, and in tax assessment ‘ select 
citizens’ commonly reinforced the more regular, the official, corps 
of city officers. This literal self-government, which breaks down 
the wall of distinction between the official and the non-official 
guardian of city interests and presses all into the service of the 
community, was not optional; it was one of the principles of the 


486 


THE GOVERNMENTS OF GERMANY. 


system that service as a 1 select citizen ’ was to be enforced by pen¬ 
alties, — by increasing the taxes of those who refused to serve. 

The citizens chosen for ward work or for consultation with the 
central committees of Aldermen and town-councillors included 
merchants, physicians, solicitors, manufacturers, head-masters of 
public schools, and like representative persons. 

The three-class system of voting obtained also in all municipal 
elections in Prussia, so that weight in the electoral control of city 
affairs was proportioned to tax-assessment. One-third of the 
elected Aldermen and town-councillors represented the wealthy 
class, one-third the middle class, one-third the ‘ proletariat/ It 
was said that in Berlin the first class contained “ less than two 
per cent of the voters, the second class less than thirteen per cent, 
and the third eighty-six per cent.” The arrangement bred dis¬ 
content in the lowest class and they largely refrained from voting. 

The Administration of Justice. — The Prussian courts of 
justice, like those of the other states of the Empire, had the 
general features of their organization and jurisdiction prescribed 
by imperial law (p. 465). They were Prussia’s courts ; but they 
also served as courts of the Empire ; Prussian law commanded only 
their personnel and their territorial competence. At the head of 
the system sat the supreme court of the Empire ( Reichsgericlit ), 
to which the courts of all the other states stood subordinated. 1 
In each Province there was a Superior District Court ( Oberlandes - 
gericht), and, next below it, a District Court (. Landgericht ). In 
each magisterial District there was an Amtsgericlit. 

The Amtsgericlit , which was the court of first instance in 
minor civil cases, consisted of one or of several judges, according 
to the amount of business there was for the court to despatch : for 
when there was more than one judge the work was not handled by 
them together, but separately; it was divided, either logically or 
territorially. 

The higher courts, the District Court, and the Superior District 
Court consisted each of a number of judges. At the beginning of 
each year, the full bench of judges in each court determined a 
division of the business of the court among themselves, constituting 

1 Prussia is vouchsafed by imperial law the privilege of retaining her own 
supreme court; but she has not availed herself of the permission. 


THE GOVERNMENTS OF GERMANY. 


487 


themselves in separate ‘ chambers ’ for separate classes of cases. 
There was always a ‘ civil chamber’ and a ‘ criminal chamber/ and 
often a chamber for commercial cases (Kammerfiir Handelssachen). 
Each chamber had its own president and its own independent 
organization. 

Minor criminal cases were tried in sheriffs’ courts ( Sclioffen - 
gerxclite ) sitting in the Magisterial Districts ; more serious offences 
by the criminal chamber of the District Court; all grave crimes 
by special jury-courts ( Schwurgerichte ) which sat under the presi¬ 
dency of three judges of the District Court. 

An appeal from a sheriff’s court on the merits of the case could 
go no further than the District Court. Appeals on the merits of 
the case from the criminal chamber of the District Court were 
not allowed; but a case could be taken from that court to the 
Superior District Court on the ground of neglect of a rule of law, 
and on other legal grounds to the Imperial Court, for revision. 

The nomination of all judges rested with the king : but the 
appointment was for life and the judges stood in a position of 
substantial independence. The Minister of Justice, however, 
completely controlled all criminal prosecutions: for no criminal 
prosecution could be instituted except by the states-attorneys who 
represented the government in the several courts, and these held 
their offices by no permanent tenure, but only at the pleasure of 
the Minister. 

Purity in the administration of justice was sought to be secured 
by public oral proceedings. Until a very recent period all pro¬ 
ceedings in the Prussian courts were written: the plea and the 
answer constituted the suit. Later public oral proceedings were 
made imperative. 

The organization of justice in Prussia provided for the assump¬ 
tion by the state of a certain ‘ voluntary ’ jurisdiction, some of 
which, such as the exercise of guardianship and the probate of 
wills (which latter was made a function of the Amtsgericht) are 
quite familiar to the practice of other countries; but others of 
which, such as an oversight over certain feudal interests, are 
somewhat novel in their character. The system knew also certain 
officially commissioned Arbitrators ( Schiedsmtinner ) and certain 
frade judges, which were in some respects peculiar to itself. 


488 


THE GOVERNMENTS OF GERMANY. 


Administrative Courts ( Verwaltungsgerichte ).— The same 
distinction between administrative and ordinary courts of justice 
that we have observed in France obtained also in Prussia (page 
173). Here again appeared the organizing hand of Stein. He 
established for Prussia the principle that cases arising out of the 
exercise of the state’s sovereignty should be separated in adju¬ 
dication from cases between private individuals and should be al¬ 
lotted to special courts. Such were cases of damage done to an 
individual through the act of an administrative officer, or cases of 
alleged illegal action on the part of a public official, — in brief, all 
cases of conflict between the public power and private rights, as 
well as all questions between administrative authorities. 

The courts charged with this jurisdiction were, (1) in the 
Circle, the Circle Committee (page 482), presided over, as in deal¬ 
ing with other matters, by the Landrat, and in the cities which 
themselves constitute Circles, the City Committee ( Stadtausscliuss ), 
consisting of the Burgomaster as president and four members, 
all of whom must be qualified for judicial service or for the higher 
grades of administrative office, elected by the magistracy of the 
city, acting collegiately, for a term of six years. (2) In the 
Government District, the District Committee (page 481), to whose 
presidency when sitting in this capacity, the king could appoint, 
as representative of the President of the Administration, one 
of the members of the 1 Administration ’ under the title of Di¬ 
rector of the Administrative Court ( Verwaltungsgerichtsdirektor ). 
(3) The Superior Administrative Court in Berlin ( Obervencaltungs - 
gericht), whose members were appointed by the king, with the con¬ 
sent of the Council of Ministers, for life. This court stood upon 
the same footing of rank with the supreme federal tribunal, the 
Reichsgericht. Its members were qualified, half of them for high 
judicial, half for high administrative office. It acted, like the 
other courts, in divisions or “ senates,” each of which had its 
separate organization; and these sections came together only for 
the settlement of certain general questions. 

The Court of Conflicts (Cerichtsliof fur Kompetenz-kon- 
Jlikte). — Between the two jurisdictions, the ordinary or private 
and the administrative, stood, as in France, a Court of Conflicts. 
It consisted of eleven judges appointed for life (or for the term 


THE GOVERNMENTS OF GERMANY. 


489 


of their chief office, in case they acted ex officio) ; and of these 
eleven six were members of the Superior District Court of Berlin, 
— must belong, that is, to a court of the ordinary jurisdiction. 
The other five were persons eligible to the higher judicial or 
administrative offices. (Compare p. 174.) 

The Prussian Courts and Constitutional Questions.—The 

Prussian courts had no such power of passing upon the constitutionality 
of laws as is possessed by the courts of the United States. They could not 
go beyond the simple question whether a law had been passed, or, in 
administrative cases, an official order issued, in due legal form. 

Revolution in Germany. — At the time this is written 
(December 1, 1918) all Germany is in a state of revolution. The 
Emperor has abdicated and taken refuge in Holland and a pro¬ 
visional government has been established with the Socialists in 
control. Soldiers' and Workmen's Councils have been established 
in numerous places and have assumed control of local affairs. In 
all the monarchical states of the Empire, the rulers have abdi¬ 
cated or have been deposed, and it appears that a democratic form 
of government will be established both in the Empire and in the 
individual states. 

A general election in the Empire has been called for January, 
1919 and upon the body then chosen will devolve the task of 
formulating the new governmental arrangements. 

This much may safely be predicted — that the Empire will 
lose Alsace-Lorraine and Prussia will lose that part of Poland 
which it acquired through the partitions of the unhappy country. 


Some Representative Authorities. 

Ashley, Local and Central Government, London, 1906. 

Barker, J. E., Modern Germany, new ed., London, 1912. 

Binding, K., Die Rechtliche Stellung des Kaisers, Dresden, 1898. 
Borgeaud, Ch., Adoption and Amendment of Constitutions, trans. by 
C. D. Hazen and J. M. Vincent, N.Y., 1895. 

Burgess, J. W., Political Science and Constitutional Law, 2 vols., N.Y., 
1891. 

Dawson, W. H., Germany and the Germans, 2 vols., 8vo, London, 1894* 
and The Evolution of Modern Germany, London, 1908. 


490 


THE GOVERNMENTS OF GERMANY. 


Demombynes, G., Constitutions Europeennes, 2 vols., 8vo., Paris, 1883. 
See Vol. II., pp. 487 and 733. 

Dodd, W. F., Modern Constitutions, 2 vols., Chicago, 1909. 

Dupriez , L., Les Ministres dans les principaux pays d’Europe et d’Ame- 
rique, 2 vols., Paris, 1892. 

Fleiner, F., Institutionen des deutschen Verwaltungsrecht, Tubingen, 
1911. 

Goodnow, F. J., Comparative Administrative Law, 2 vols., 8vo, N.Y., 
1893. 

Grais, Graf Hue de, Handbuch der Verfassung und Verwaltung in 
Preussen und im deutschen Reiche, 8th ed., Berlin, 1907. 

Howard , B. E., The German Empire, N.Y., 1906. 

James , E. J., The Federal Constitution of Germany (Translation;, 
Am. Acad. Social and Political Science, Phila., 1890. 

Laband , Paul, Das Staatsrecht des deutschen Reiches, 4 vols., 4th ed., 
Tubingen, 1901. Also , under same title, a briefer commentary in 
Marquardsen’s Handbuch des Oeffentlichen Rechts der Gegenwart, 
Freiburg in B., 1883. 

Lowell , A. L., Governments and Parties in Continental Europe, 2 vols., 
Boston, 1896. 

Mayer, O., Deutsches Verwaltungsrecht, Leipzig, 1895-1896. 

Morier, R. B. D., in Cobden Club Essays on Local Government and 
Taxation, 1875. 

Munro , W. B., The Government of European Cities, N.Y., 1909. 

Ogg , F. A., The Governments of Europe, N.Y., 1913. 

Ronne, L. v., Das Staatsrecht des deutschen Reiches, 2d ed., Leipzig, 
1876. Das Staatsrecht der preussischen Monarchic, 5 vols., 4th 
ed., 1881-1883. 

Sarwey, O. von, Allgemeines Verwaltungsrecht, in Marquardsen’s Iland- 
buch des Oeffentlichen Rechts der Gegenwart, Freiburg in B., 
1884, pp. 112-117. 

Seeley, J. R., Life and Times of Stein. Part I., Chap. V.; Part III., 
Chap. I.; Part V., Chaps. II., III. 

Schulz, Hermann, Das preussische Staatsrecht, auf Grundlage des 
deutschen Staatsrechtes, 2 vols., Leipzig, 1872-1877. Das Staats¬ 
recht des Konigreichs Preussen, in Marquardsen’s Handbuch, Frei¬ 
burg in B., 1884. 

Stengel, K. von, Worterbuch des deutschen Verwaltungsrechts, 2 vols., 
Freiburg in B., 1889-1890. 

Turner, Sam’l Epes, A Sketch of the Germanic Constitution, N.Y., 1889. 

Zorn, P., Das Staatsrecht des deutschen Reiches, 2d ed., Berlin, 1895- 
1897. 


XIV. 


THE GOVERNMENTS OE AUSTRIA-HUNGARY. 

Austria’s Historical Position. — Until tlie middle of the 
last century Austria stood at the front of German political 
union; not until 1866 was she deposed from leadership in Ger¬ 
many and set apart to attempt alone the difficult task of amalga¬ 
mating the polyglot dual monarchy of Austria-Hungary (page 445). 

Acquisition of Hungary and Bohemia. — It was unques¬ 
tionably Austria’s headship in the Empire which enabled the 
Habsburg princes at once to broaden and to consolidate their 
domain in the southeastern border-land between Slav and Teuton. 
Their power and influence within the Empire gave them their 
opportunity to control the destiny of border states like Bohemia 
and Hungary, lying at Austria’s doors. Both Hungary and 
Bohemia fell to Habsburg in the same year, the year 1526, when 
Ferdinand I. mounted their throne. 

Bohemia. — Bohemia was a Slavonic wedge thrust into 
the side of Germany. Compassed about by hostile powers, it 
was a prize to be fought for. Alternately conquered by several 
neighboring kingdoms, it finally fell into German hands and 
became an apanage of the Empire. It was as such that the Habs- 
burgers seized it when its throne became vacant in consequence 
of the extinction of a Luxemburg line of princes. In 1526 their 
hold upon it became complete, and they were thenceforth able to 
keep it secure as an hereditary possession within their family. 

Moravia. — Moravia also was and is Slavonic. Slavs early 
drove out its Teutonic possessors, and were prevented from joining 
the Slavs of the southeast in the formation of a vast Slavonic 
kingdom only by the intervention of the Magyars, the conquerors 

491 


492 THE GOVERNMENTS OF AUSTRIA-HUNGARY 


of Hungary. This dominant race in the tenth century thrust 
themselves in between the Slavs of the northwest and those of 
the southeast, and, driving back the Slavs of Moravia, reduced the 
once 1 Great Moravia ’ to the dimensions of the present province. 
Striven for by Hungary, by Poland, and by Bohemia, Moravia 
finally met her natural fate in incorporation with Slavonic Bohe¬ 
mia (1029), and passed, along with that kingdom, into Austrian 
hands, in 1526. 

Hungary. — Hungary is the land of the Magyars, a Tura¬ 
nian race which retains even to the present day its distinctive 
Oriental features, habits, and bearing among the native European 
races about it. After having suffered the common fortune of 
being overrun by numerous barbaric hordes at the breaking up of 
the Boman Empire, the territory of Hungary became, in 889, the 
realm of the Magyar duke Arpad, the Conqueror. In the year 
1000 the duke Vaik, who had succeeded to the duchy in 997, re¬ 
ceived at the hands of Pope Sylvester II. the title of ‘apostolic 
king ’ of Hungary, and, under the name of Stephen, became the 
first of a line of native monarchs which kept the throne until 
1301. From 1301 till 1526 kings of various families and origins 
won places upon the throne. During this period, too, Hungary 
felt the full power of the Turk, since 1453 master of Constanti¬ 
nople. The battle of Mohacs (29 August, 1526) brought terrible 
overthrow upon the Hungarian forces at the hands of Soliman 
the Magnificent, and death to Louis, the Hungarian king. Louis 
was childless; his widow, Maria, was sister to Ferdinand I. of 
Austria; and it was her influence which led the more powerful 
party of nobles within the kingdom to elect the Habsburger to 
the throne and so put Austria permanently in the Hungarian 
saddle. Hot, however, until 1665-1671, a period of insurrection 
in Hungary, did the Habsburgers convert their elective into an 
hereditary right to the throne. 

Transylvania, Slavonia, Croatia. — Transylvania, Slavonia, 
and Croatia, annexed at various times to Hungary, passed with 
Hungary to the house of Habsburg. Except during the period 
1848 to 1867, the period during which Hungary was being disci¬ 
plined for her revolt of 1848-1849, these provinces remained 
apanages of Hungary, though Croatia occupied a distinctive 


THE GOVERNMENTS OP AUSTRIA-HUNGARY. 493 


position, and was always accorded a representative of her own in 
the Hungarian ministry. From 1848 to 1867 Transylvania, 
Slavonia, and Croatia were treated as Austrian crown lands. 

Galicia, Dalmatia. — Galicia, a district much fought for 
and often divided, formerly a part of Poland, came to Austria 
upon the first partition of Poland, in 1772. Dalmatia, once part 
of ancient Illyria, afterwards a possession of Venice, much coveted 
and sometimes held by Croatia and by Hungary, came to Austria 
through the treaty of Campo Formio, in 1797. 

Bosnia and Herzegovina. — The Congress of Berlin, 1878, 
which met to fix upon a basis for the new settlements resulting 
from the victories of Russia over Turkey, added to Austria’s 
multifarious duties as ruler of many races the protectorate of 
Bosnia and Herzegovina, districts inhabited by a Servian race and 
long subject to Turkish dominion. They were annexed by Aus¬ 
tria in 1908. 

Austria-Hungary: Nature of the Union. — The constitu¬ 
tion of the Austro-Hungarian monarchy practically recognized 
but two parties to the union, Austria and Hungary. Bohemia, 
for all she had so much individuality and boasted so fine a 
history of independence, was swallowed up in Austria: only the 
Magyars of Hungary, among all the races of the heterogeneous 
realm of the Habsburgers, obtained for the kingdom of their 
making a standing of equality alongside of dominant Austria. 

Variety of Race. — The commanding difficulty of govern¬ 
ment throughout the whole course of Austro-Hungarian politics 
has been the variety of races embraced within the domain of the 
monarchy. First and most prominent was the three-sided contrast 
between German, Slav, and Magyar. Within this general clas¬ 
sification, again, Slav differed from Slav by reason of many sharp 
divergencies of history, of speech, and of religion; and outside 
this classification, there was added a miscellany of Italians, Croats,. 
Serbs, Rumanians, Jews, — men of almost every race and people 
of eastern Europe. This variety was emphasized by the fact that 
only the Czechs (Bohemians), among all these peoples, had a 
separate home land in which they were in the majority. In Bohe¬ 
mia and Moravia the Czechs constituted considerably more than 
half the population; whilst in Hungary the Magyars, though 


494 THE GOVERNMENTS OF AUSTRIA-HUNGARY. 


greatly outnumbering any other one element of the population, 
were less than half the whole number of inhabitants ; and in Aus¬ 
tria, though men of German blood were very greatly in the major¬ 
ity in the central provinces which may be called Austria proper, 
they constituted in Austria taken as a whole very little more than 
one-third of the population. 

Home Rule: Bohemia, Hungary. — At least two among 
these many races, moreover, were strenuously, restlessly, persist¬ 
ently devoted to independence. No lapse of time, no defeat of 
hopes, seemed sufficient to reconcile the Czechs of Bohemia to in¬ 
corporation with Austria. Pride of race and the memories of a 
notable and distinguished history kept them always at odds with 
the Germans within their gates and with the government set over 
their heads. They desired at least the same degree of autonomy 
that had been granted to Hungary. 

Not ‘granted’ either. No doubt it would be more correct to 
say the degree of autonomy won by Hungary. Dominant in a 
larger country than Bohemia, perhaps politically more capable 
than any Slavonic people, and certainly more enduring and defi¬ 
nite in their purposes, the Magyars, though crushed by superior 
force in the field of battle, were able to win a specially recog¬ 
nized and highly favored place in the dual monarchy. Although 
for a long time a land in which the noble was the only citizen, 
Hungary has been a land of political liberties almost as long 
as England herself has been. The nobles of Hungary won from 
their king, Andreas II., in 1222, a “ Golden Bull ” which was a 
veritable Magna Charta. It limited military service in the 
king’s army, it regulated taxation, it secured for every noble 
trial by his peers, it gave order and propriety to judicial admin¬ 
istration, it even enacted the right of armed resistance to tyranny. 
The nobles, too, established their right to be personally summoned 
to the national Reichstag. Standing upon these privileges, they 
were long able to defeat the absolutism of the Austrian monarchs. 
Ferdinand I. acquired the throne of Hungary only after recognizing 
her constitution; not for more than a hundred years did the crown 
become hereditary in the Austrian house; and not till 1687 did 
the ancient right of armed resistance lose its legal support. 

The period of reaction which followed the Napoleonic wars 


THE GOVERNMENTS OF AUSTRIA-HUNGARY. 495 


and the Congress of Vienna found kings everywhere tightening 
where they could the bonds of absolutism: and nowhere were 
those bonds more successfully strengthened than in Austria- 
Hungary under the reigning influence of the sinister Metternich. 
1848, however, saw the flames of insurrection break forth more 
fiercely in Hungary than anywhere else in terror-stricken 
Europe: only by the aid of Russia was Austria able once more 
to get control of her great dependency. So completely was Hun¬ 
gary prostrated after this her supreme effort that she had for a 
little no choice but to suffer herself to be degraded into a mere 
province of Austria. 

The Constitution of 1867. — Wars and disasters presently 
burst upon the absolutist Austria, however, in an overwhelming 
storm. Thrust out from Germany (page 445) she was made at 
length to feel the necessity, if she would give her realm strength, 
to give her subjects some rights. Her eyes were at last opened 
to the supreme folly of keeping the peoples under her rule weak 
and spiritless, poor and motionless, in order that her monarchs 
might not suffer contradiction. She assented, accordingly, 
18 February, 1867, to a constitutional arrangement which recog¬ 
nized the kingdom, not as Austria’s, but as the joint kingdom of 
Austria-Hungary, and which gave to the Empire its political 
organization. 

Dual Character of the Monarchy. — The Austro-Hun¬ 
garian monarchy, although compacted by the persistent forces of 
a long historical development, was not a unitary state, a territorial 
and legal unit, but simply a “ real union of two constitutionally 
and administratively independent states.” This union was, in¬ 
deed, more substantial than that formerly existing between 
Sweden and Norway: the latter began only in 1815, and was 
only an arrangement by which two kingdoms might subsist under 
a single king, as partners in international undertakings but as 
something less than partners in affairs of nearer interest; while 
Austria-Hungary, on the contrary, held as a dual possession by a 
single royal house for more than three hundred and fifty years, 
subjected by that house to the same military and financial ser¬ 
vices, and left the while in possession of only such liberties as 
could be retained by dint of turbulent insistence, consisted of two 


496 THE GOVERNMENTS OF AUSTRIA-HUNGARY. 


countries at many points interlaced and amalgamated in history 
and in institutional life. 

The Fundamental Laws. — The constitutional law of 
the dual kingdom rested upon grants of privilege from the 
Crown. It is divisible into three parts : the laws of the union, 
the laws of Austria, and the laws of Hungary, (a) The laws of 
the union embraced, beside various other rules concerning succes¬ 
sion to the throne, the Pragmatic Sanction of 1713, which was 
formally adopted by the representatives of the Hungarian group 
of states ; and the identical Austrian and Hungarian laws, passed 
in December, 1867, which fixed the relations of the two kingdoms 
to one another and arranged for the administration of their com¬ 
mon affairs, (b) The fundamental law of Austria consisted of 
various royal decrees, ‘ diplomas/ and patents, determining the 
membership, privileges, etc., of the national Reichsrath and of 
the provincial Landtags. Of these the chief are five fundamental 
laws of December, 1867, by which a general reconstruction of the 
government was effected, in agreement with the new constitution 
given to the union in that year, (c) The constitutional arrange¬ 
ments of Hungary rested upon the Golden Bull of Andreas II., 
1222, touching the privileges of the Estates (page 494) ; upon cer¬ 
tain laws of 1790-1791 concerning the political independence of 
Hungary, and her exercise of legislative and executive powers; 
upon laws of 1847-1848 granting ministerial responsibility, annual 
sessions of the Reichstag , etc.; and upon a law of 1868 (amended 
in 1873) whereby Croatia-Slavonia was given certain distinct privi¬ 
leges to be enjoyed independently of Hungary. These were most 
of them older laws than the Austrian. Although able for long 
periods together to keep Austria at their feet, the Hapsburgers 
were never able to keep Hungary for long in a similar attitude of 
submission. Her constitutional separateness and independence, 
though often temporarily denied in practice, were never destroyed. 
The cooperative rights of the Estates in government, communal 
self-administration, and the privileges of the free cities tri¬ 
umphantly persisted spite of all efforts made to suppress them. 

The Common Government : the Emperor-King. — The Em¬ 
peror of Austria bore also the titles King of Bohemia and 
‘ Apostolic’ King of Hungary (page 492). He stood at the head, 


THE GOVERNMENTS OF AUSTRIA-HUNGARY. 497 


not of one of the branches of the government, but of the whole 
government in all its branches. In theory, indeed, he alone gov¬ 
erned : he made, while legislatures and provincial assemblies only 
assented to, the laws. Law limited his powers : the sphere of his 
authority was fixed in each kingdom by definite constitutional pro¬ 
visions ; but, whatever practical concessions modern movements 
of thought and of revolution may have compelled, it yet remained 
the theory, and to a certain extent the fact, of constitutional de¬ 
velopment in Austria-Hungary that the monarch had himself of' 
his own free will created such limitations upon his prerogative 
as existed. There was, therefore, significantly enough, nothing to 
be said by constitutional commentators in Austria-Hungary either 
concerning the king’s veto or concerning any special arrange¬ 
ments for constitutional change. It was thought to go without the 
saying that the monarch’s negative would absolutely kill, his 1 let it 
be ’ abundantly vitalize, all laws, whether constitutional or other. 

Succession, Regency, etc. — The laws touching the] suc¬ 
cession to the Austro-Hungarian throne provided so minutely for 
the widest possible collateral inheritances that provision for a 
vacancy was apparently not necessary. Permanent laws vested 
the regency in specific representatives of the royal house. The 
royal age of majority was sixteen years. 

The Common Ministries. — The Emperor-King was assisted 
in his direction of the common affairs of his two kingdoms by 
three Ministries and an Imperial Court of Audit. There was (1) a 
Ministry of Foreign Affairs and of the Imperial Household, which, 
besides the international functions indicated by its name, was 
charged with oversight of the foreign trade and shipping inter¬ 
ests of the dual kingdom. (2) The Ministry of War, by which 
the common standing army of the two kingdoms was administered. 
The legislation upon which the maintenance of this common 
standing army was based originated with the legislatures of the 
two kingdoms acting separately. It was, that is, matter of agree¬ 
ment between the two countries. It covered such points as the 
size of the army, liability to military service, rules and methods 
of recruiting, etc., and was embodied in identical laws adopted by 
the two legislatures, each acting for itself and without constitu* 
tional compulsion. 


498 THE GOVERNMENTS OF AUSTRIA-HUNGARY. 

As commander-in-chief of the army, the Emperor-King had the 
full right of discipline, full power to appoint, remove, or transfer 
officers of the line, and the determination of both the war and 
peace organizations of the army, quite independently of any action 
whatever on the part of the minister of war. In most other con¬ 
cerns of the military administration, however, his acts require the 
countersignature of the minister. The militia, or reserve, services 
of the two kingdoms were separate, and separately maintained ; 
but in war the militia of both countries became supplementary to 
the regular army. 

(3) The Ministry of Finance: acting under the Emperor, the 
minister of finance prepared the joint budget, apportioned the costs 
of the common administration between Austria and Hungary, saw 
to the raising of the relative quotas, applied the common income 
in accordance with the provisions of the budget, and administered 
the common floating debt. 

The chief sources of the common revenue in Austria-Hungary 
were customs duties and direct contributions from the treasuries 
of the two states. Certain parts of the customs duties were as¬ 
signed to the common treasury; and such expenses as these were 
not sufficient to meet were defrayed by the contributions, Austria 
paying sixty-three and six tenths (63.6), and Hungary thirty-six 
and four tenths (36.4) per cent of the sums needed. 

The Economic Relations of Austria and Hungary were regu¬ 
lated in the important matters of commerce, the money system, 
the management of those railroads and telegraph lines whose 
operation affected the interests of both kingdoms, the customs 
system, and the indirect taxation of industries by formal agree¬ 
ments of a semi-international character entered into every ten 
years, and brought into force by separate but of course identical 
laws passed in the national legislatures of both countries. Each 
state controlled for itself the collection of customs duties within 
its own territory; but Austria-Hungary was regarded as forming 
only a single customs and trade territory, and the laws touching 
administration in these fields were identical in the two countries. 

There was a joint stock Austro-Hungarian bank at Vienna; 
the two kingdoms had by treaty the same system of weights and 
measures; and there was separate coining but the same coinage. 


THE GOVERNMENTS OF AUSTRIA-HUNGARY. 499 


Patents, Posts, and Telegraphs. — A common system of 
patents and copyrights was maintained; and both countries had 
the same postal and telegraph service. 

The Delegations. — The most singular, interesting, and 
characteristic feature of the common government of Austria-Hun¬ 
gary was the Delegations, which constituted, in germ at least, a 
common legislature. There were two Delegations, an Austrian 
and a Hungarian. They were respectively committees of the Aus¬ 
trian and Hungarian legislatures. Each Delegation consisted of 
sixty members, twenty of whom were chosen by the upper, forty 
by the lower chamber of the legislature which they represented. 
But, although thus in form a committee of the legislature which 
sent it forth, each Delegation may be said to have represented the 
kingdom from which it came rather than the legislature of that 
kingdom. It was not subject to be instructed, but acted upon its 
own judgment as an independent body. The two Delegations sat 
and acted separately, though they exercised identical functions. 
Each passed judgment upon the budget of the common adminis¬ 
tration, each was at liberty to take action upon the management 
of the common debt, each superintended the common administra¬ 
tion, and could freely question and ‘ interpellate 9 the ministers, 
from whom each heard periodical reports; and each had the 
privilege of initiative as regards all measures coming within 
their competence. These functions were concurrent, not joint. 
They were, nevertheless, obviously functions which must under 
such a system be exercised in full agreement: the common ad¬ 
ministration could not serve two masters. If, therefore, after a 
triple exchange of resolutions no agreement was reached between 
the two bodies, a joint session was held, in which, without 
debate, and by a mere absolute majority vote, the question at 
issue was decided. 

As a matter of fact the legislative powers of the Delegations 
were very narrow indeed. Their independent action was con¬ 
fined for the most part to the granting of supplies and the super¬ 
intendence of the administrative action of the three common 
ministries. The very supplies they granted came out of taxes 
voted separately by the parliaments of the two kingdoms; and 
almost every agency they used rested upon treaties and identical 


500 THE GOVERNMENTS OF AUSTRIA-HUNGARY. 


laws independently passed. The term for which the Delegations 
were elected was one year. They were called together by the 
monarch annually, one year at Vienna, the next at Buda-Pest. 
In the selection of members of the Delegation the Austrian crown 
lands (the provinces once separate or independent) were entitled 
to representation, as was also Croatia-Slavonia on the Hungarian 
side. When the two Delegations met in joint session, the 
number of members present from each must be equal to the 
number of those present from the other, any numerical inequality 
being corrected by lot. 

Citizenship. — There was no common citizenship for the 
two kingdoms; but in all business relationships the citizens of 
each state were regarded as citizens of the other. 

The Government of Austria: the Executive. — The gov¬ 
erning power rested in Austria with the Emperor. The recent 
Emperors by no means ventured upon the centralization of 
authority attempted and in part effected by Maria Theresa and 
Joseph II.; but Austrian constitutional law did not assign duties 
to the head of the state: it assigned functions to the ministers 
and granted privileges to the representative bodies. All powers 
not explicitly so conferred remained with the Emperor. He 
directed all the administrative activities of the state; he ap¬ 
pointed the life members of the upper house of the Heichsrat; and, 
through his ministers, he in large measure controlled legislation. 
But he must act in administration through the ministers and in 
legislation through the parliament. The countersignatures of the 
ministers were, by statute, made necessary for the validity of his 
decrees ; and the consent of the Heichsrat was indispensable to the 
determination of the policy and content of all legislation. The 
only judicial prerogative that remained with him was the power of 
pardon. On all sides his power was circumscribed by the legally 
necessary cooperation of other regularly constituted authorities. 

The Ministry, which consisted of a Minister-President and 
seven heads of departments, acted as the Emperor’s council, but 
it did not constitute a board whose majority vote decided admin¬ 
istrative questions. Action was taken, rather, in each department 
upon the individual responsibility of the minister at its head. 
The ministers had a threefold office: they were the Emperor’s 


THE GOVERNMENTS OF AUSTRIA—HUNGARY. 501 


councillors, they executed his commands, and they were the re¬ 
sponsible administrators of special branches of the public service. 
They acted for the Emperor also in introducing measures in the 
Reiclisrat. They must attend both Houses to defend the policy 
of the executive and to answer ‘ interpellations/ There were 
eight executive departments : Interior, National Defence, Religion 
and Education, Trade, Agriculture, Finance, Justice, and Rail- 
ways. The Minister-President often held no portfolio, and con¬ 
stituted a ninth minister. 

Legislation : the National and Provincial Legislatures. — 

In all legislation of whatever kind the cooperation of the repre¬ 
sentatives of the people was necessary; but not all of this cooper¬ 
ative privilege belonged to the Reichsrat , the national legislative 
body. Cooperation in the greater matters of legislation was ex¬ 
pressly given by law to the Reiclisrat , but all legislative powers 
not expressly granted to it belonged to the sphere of the Land¬ 
tags of the seventeen provinces (kingdoms, grand-duchies, arch¬ 
duchies, duchies, and counties), of which the conglomerate realm 
was made up. 

The Reichsrat. — The Reiclisrat consisted of a House of 
Lords (. Herrenliaus ) and a House of Representatives ( Abgeord - 
netenhaus). To the House of Lords came princes of the blood 
royal who had reached their majority, the archbishops and cer¬ 
tain bishops, nobles of high rank who had acquired hereditary 
seats in the chamber, and such life members as the Emperor 
chose to appoint in recognition of special services to the state, 
to the church, to science, or to art. To the other House came 
representatives chosen by general, equal, and direct manhood 
suffrage. 1 The term of the lower house was six years. The 
number of members in the House of Representatives by the law 
of 1907 was 516. Representation was apportioned among the 
several lands which form the Austrian domain. 

The assent of the chambers was required not only in legis¬ 
lation but also for the validity of treaties which affected the trade 
of the country, which laid economic burdens upon the state, which 
affected its legal constitution, or which concerned an alienation or 
extension of territory. The powers of the two Houses were the 

1 Law of 1907. 


502 THE GOVERNMENTS OF AUSTRIA-HUNGARY. 


same, except that financial measures and bills which affected re¬ 
cruitment for the army must originate in the House of Repre¬ 
sentatives. It was the general rule that the assent of both Houses 
was necessary to every resolution or action of the Reichsi'at; but 
an interesting exception is to be noted. If a disagreement arose 
between the chambers upon a question of finance or of military 
recruitment, the lowest figures or numbers were to be considered 
adopted. 

The Emperor named not only the life members but also the 
president and vice-president of the House of Lords. He called 
and opened the sessions of the Reichsrat, and might close, ad¬ 
journ, or dissolve it. It was within the prerogative of the Em¬ 
peror, acting with the advice of his ministers, to enact any laws 
which seemed to be immediately necessary during a recess of the 
Reichsrat, provided they were not financial laws, or laws which 
in any way permanently encumbered the state. But such laws 
must be submitted to the Reichsrat within four weeks after its 
next assembling (going first to the House of Representatives), 
and altogether lapsed unless submitted to the Reichsrat within 
that time, and sanctioned by it. 

Ministerial Responsibility. — In theory, the ministers were 
responsible to the Houses, and resigned if defeated; but the 
theory found no realization in practice. Race lines determined 
party lines in the Houses, and even members of the same race did 
not keep steadily together in purpose or policy; so that there 
were no governing parties, and no majorities that could be reck¬ 
oned beforehand. The Emperor might placate now this group, 
and again the other, and so keep his own ministers and pursue 
his own policy. 

The Landtags. — The greater political divisions of Austria 
retained their own Landtags, or local legislatures, and to these be¬ 
longed considerable legislative powers. The Emperor named 
the chairmen of the Landtags and their substitutes; he called, 
opened, and might close, adjourn, or dissolve the Landtags; and 
his assent was necessary to all their acts. But their consent was 
necessary to almost all laws which affected the provinces which 
they represented, and their privileges constituted an important 
part of the total of legislative power which rested with the repre' 


THE GOVERNMENTS OF AUSTRIA-HUNGARY. 503 


sentatives of the people. The provinces had also extensive rights 
of self-administration. 

Local Government. — The Landtags were the most con¬ 
spicuous organs of self-government. Each Landtag consisted of 
a single chamber and represented the same classes of voters that 
sent members to the national Reichsrat (page 501), — with the ad¬ 
dition of another, an official class. The administrative organ of 
the province was a provincial committee, as in France. The cen¬ 
tral government was represented in the exercise of its many local 
powers by a Stattlialter or Landesjwasident , whose powers were 
very extensive. Within the province there were, in some parts 
of the country, districts or circles, which were areas of financial 
administration; and throughout the country the smallest areas 
of local government were the Communes, local bodies which, act¬ 
ing within the commission of general statutes, exercised con¬ 
siderable powers of self-direction through a communal committee 
and a communal president chosen, together with a certain num¬ 
ber of assistants, by the committee. The Communes were organs 
of the provinces, and their presidents to a certain extent served 
the general state administration. 

The Government of Hungary: the Executive. — The king 
bore substantially the same relations to the other powers of the 
state in Hungary that he bore in Austria. The directing head 
of the state, he yet must act in all administrative matters through 
the ministers, and in all legislative matters through the national 
chamber. Even his treaty-making power was limited as regards 
Hungary in the same way that it was limited as regards Austria 
(page 502). 

The Hungarian Ministry consisted of a Minister-President and, 
if he held no portfolio, of nine other ministers : a minister attend¬ 
ant upon the king, a minister of the Interior, a minister of Finance, 
a minister of Industry and Commerce, a minister of Agriculture, 
a minister of Justice, a minister of Religion and Education, a 
minister of National Defence, and a special minister for Croatia- 
Slavonia. 

The ministers attended the sittings of the chambers and played 
there the same part that the Austrian ministers played in the 
Reichsrat (page 501). The Hungarian ministers were, however, 


504 THE GOVERNMENTS OF AUSTRIA-HUNGARY. 


subject to a real responsibility to the parliament of the kingdom. 
The Magyars maintained a veritable majority in the Hungarian 
Houses, and they knew their own minds and the right methods 
of party discipline, besides. They have been statesmen and 
rulers time out of mind, and the king’s ministers in Hungary 
obeyed and represented the majority in parliament, resigning as 
of course when defeated. 

The Diet.—The Diet ( Orszdggyiiles ), the national repre¬ 
sentative body, consisted of a Table of Magnates and a Table of 
Representatives. To the former went all hereditary peers who paid 
an annual land tax of three thousand florins, the highest officials 
of the Roman Catholic and Greek churches, certain ecclesiastical 
and lay representatives of the Protestant churches, eighty-four 
life peers appointed by the king, certain members ex officio, three 
delegates from Croatia-Slavonia, and those royal archdukes who 
had reached their majority and who owned landed estates in Hun¬ 
gary. The Table of Representatives consisted of four hundred 
and fifty-three members elected by direct vote for a term of five 
years. The membership of the House for ordinary business, 
however, was only four hundred and thirteen. The forty addi¬ 
tional members represented Croatia-Slavonia; and, inasmuch as 
that great province had an almost independent legislature of its 
own, its members in the national House voted only upon ques¬ 
tions of national action which affected their own province. These 
subjects were understood to be, the army, trade, and finance. As 
must always happen where there is real ministerial responsi¬ 
bility, the lower House was the governing House. The Magnates 
yielded, in the long run, every point upon which the purpose of 
the Representatives was definitely fixed. 

The franchise rested upon the payment of a small amount of 
taxes on land or on income. Members of certain learned and 
professional classes, however, possessed the franchise without 
any property qualification. 

The president and vice-president of the upper House were 
nominated by the king. As in the case of the Austrian repre¬ 
sentative bodies, so also in the case of the Hungarian, the king 
convened and opened, and might close, adjourn, or dissolve 
them. 


THE GOVERNMENTS OE AUSTRIA-HUNGARY. 505 


Local Government.—For purposes of local government 
Hungary was divided into shires, self-administered cities, and 
Communes. The organization was throughout substantially the 
same. In each area, — the Commune excepted, — there was a 
president who represented the central government; in each, with¬ 
out exception, there was an administrative committee which was 
the executive representative of the local body and an assembly, 
in part representative and in part primary (inasmuch as those 
who are most highly taxed are entitled to be present), with which 
rested the general direction of affairs. 

Croatia-Slavonia. — There was not in Hungary the pro¬ 
vincial organization which existed in Austria. Croatia-Slavonia 
was the only constituent part of the Hungarian lands which had 
its own separate Landtag. The organization of this territory 
was in all respects exceptional. It was given legal rights which 
could not be taken away from it without its own consent; and it 
had a distinct administration responsible to the king and to its 
own Landtag. It was, nevertheless, an integral part of the Hun¬ 
garian monarchy. 

Revolution and the Breaking Up of the Austro-Hungarian 
Empire. 1 •— The war has brought the long-anticipated dissolution 
of the power of the Habsburgs and the proclamation of a number 
of independent republican states. The Emperor Charles II. has 
abdicated and the Union of Austria and Hungary has been dis¬ 
solved. Hungary has been proclaimed a republic and will doubt¬ 
less be greatly reduced in size through the loss of territories that 
will become independent or that will join with Rumania and Serbia. 
The Czecho-Slovaks in Bohemia and Slavonia have proclaimed 
themselves independent and are establishing a republic, as have 
the Jugo-Slavs in the South. The fate of the German Austrians 
is not yet determined. The Austrian Poles have joined in the 
new Republic of Poland ; Transylvania will probably unite with 
Rumania, since they are of the same nationality. The Croats 
and Serbians in Bosnia and Herzegovina have proposed a union 
with Serbia, and Italia Irredenta will return to Italy. 

Whatever the exact territorial arrangements may be, the Aus¬ 
trian and the Hungarian power over the subject races in the 

1 Written December 1, 1918. 


506 


THE GOVERNMENTS OF AUSTRIA-HUNGARY. 


Empire has been broken, and out of the disruption of the Empire 
will come a number of small, national states in which the national 
aspirations for independence will be realized. 


Some Representative Authorities. 

On Austria-Hungary: 

Andrassy, J., Development of Hungarian Constitutional Liberty, Lon¬ 
don, 1908. 

Arnold-Foster , F., Francis D6ak, A Memoir, London, 1880. 

Borgeaud , Charles, The Adoption and Amendment of Constitutions in 
Europe and America. Translated by C. D. Hazen and J. M. Vincent. 
N.Y. and London, 1895. 

Demombynes, G., Les Constitutions Europeennes, II., pp. 167-304, 2 vols., 
Paris, 1883. 

Dickinson , Reginald, Summary of the Constitution and Procedure of 
Foreign Parliaments, 2d ed., 8vo, London, 1890. 

Dodd , W. F., Modern Constitutions, 2 vols., Chicago, 1909. 

Gumplowicz , Das Oesterreichische Staatsrecht, 3d ed., Vienna, 1907. 

Knatchbull-Hugessen, C. M., The Political Evolution of the Hungarian Na¬ 
tion, London, 1908. 

Leger , Louis, A History of Austro-Hungary from the Earliest Time to 
the Year 1889. Translated by Mrs. Birkbeck Hill. London, 1889. 

Levy , D., L’Autriche-I Iongrie, ses Institutions, etc., Paris, 1872. 

Loivell , A. L., Governments and Parties in Continental Europe, Vol. II., 
Chaps. VIII.-X., 2 vols., Boston, 1896. 

Ogg, F. A., The Governments of Europe, N.Y., 1913. 

Patterson , Arthur J., The Magyars: Their Country and Its Institutions, 
2 vols., 8vo, London, 1870. 

Ulbrich, J., Das Staatsrecht der oesterreichisch-ungarischen Monarchic, 
in Marquardsen’s Handbuch des oehentlichen Rechts der Gegenwart, 
Freiburg im B., 1884. 

Von Ferdinandy , G., Staats und Verwaltungsrecht des Konigreichs Un- 
garn, Hanover, 1909. 

Vamber y, Arminius, and ILeilprin, Louis, Hungary (Stories of the Nations 
Series), N.Y. and London, 1886. 

Whitman , C. S., The Realms of the Hapsburgs, London and N.Y., 1893. 

Worms , Baron H. de, The Austro-Hungarian Empire, 8vo, London, 
1877. Historical and descriptive. 

Zuylen de Nyevelt , Baroness, Austria: Its Society; Politics, and Re¬ 
ligion, National Review , October, 1891. 


XY. 


THE GOVERNMENT OF SERBIA, 

The struggle for Serbian independence began in 1804 and con¬ 
tinued until by the Treaty of Adrianople in 1829 the pachalik of 
Belgrade was erected into an autonomous and tributary princi¬ 
pality under the suzerainty of Turkey and the protection of 
Russia. Miloch Obrenovitch was proclaimed hereditary prince 
by the national Skupshtina and was recognized as such by the 
Porte in 1830. Under him a constitution was prepared and after 
approval by the Grand Skupshtina was promulgated in 1835. It 
created a Council of State charged with the duty of preparing 
the laws, but as it met for only two days a year it could not per¬ 
form its function and became merely a chamber for enrolling the 
laws. This constitution was of short duration and was succeeded 
by another, called the Oustav, or Statute, which went into effect 
in 1839. For twenty years the Statute was the fundamental law 
of the principality. By the Treaty of Paris in 1856, the Russian 
protectorate of the principality was abolished, and Serbia was 
recognized as a semi-independent state. In 1861 the functions 
of the Skupshtina were by law determined in some detail and a 
distinction made between the ordinary Skupshtina and the Grand 
Skupshtina which had no stated meetings. The Skupshtina was 
a sort of popular assembly, whose origin lay in very remote time. 

In 1878, by the Treaty of Berlin, the complete independence 
of the principality was recognized, and in 1882 the national 
Skupshtina proclaimed the principality a kingdom and Prince 
Milan Obrenovitch IV took the title of Milan I, King of Serbia. 

In 1869, following the assassination of Prince Michel, the 
Grand Skupshtina had, through a committee, prepared and pro- 

507 


508 


THE GOVERNMENT OE SERBIA. 


claimed a constitution. This lasted until 1888 when King Milan 
yielded to the oft-repeated demands for a revision, and appointed 
a committee of seventy, composed of members of the different 
parties. The work of the committee was ratified by a Grand 
Skupshtina and the new constitution was promulgated in Febru¬ 
ary, 1889. Its existence was brief, for it was suspended by a 
royal proclamation in May, 1894, and the constitution of 1869 
was again put into effect. Seven years later this constitution 
was again repealed and a new one was proclaimed in April, 1901. 

The constitution of 1901 was elaborated in conjunction with 
the leaders of the radical and progressive parties and contained 
an innovation in the form of a senate. Following the assassina¬ 
tion of King Alexander and Queen Draga in 1903, the Skupshtina 
revived the constitution of 1888 and proclaimed Peter Kara- 
georgevitch king, with the title of Peter I. 

According to the constitution the kingdom is an hereditary 
and constitutional monarchy combined with representation of the 
people. The state religion is that of the Orthodox Greek Church. 

For purposes of administration the kingdom is divided into 
departments ( okroug ), the departments into arrondissements 
(srez), and the arrondissements into communes ( opchtina ). 

The constitution contains a statement of the rights of citizens: 
all are equal before the law and no titles of nobility can be 
granted or recognized; individual liberty is guaranteed and no 
one can be tried except by a competent tribunal; private domi¬ 
cile and private property are inviolable; freedom of conscience 
is absolute and instruction is free in so far as it is not contrary 
to public order and morality; primary instruction is obligatory 
and free in the public schools ; liberty of speech and of the press, 
freedom of assembly and of association, and the right of petition 
are guaranteed. 

The King. — The executive power is vested in the King 
and is exercised through responsible ministers who are appointed 
and dismissed by the King. He is the head of the state and his 
person is inviolable ; he cannot be held responsible ; he sanctions 
and promulgates the laws; he appoints the officers of the state 
and they exercise their authority in his name and under his super¬ 
vision; he is commander-in-chief of the army; he conducts the 


THE GOVERNMENT OF SERBIA. 


509 


foreign affairs of the state, declares war, makes treaties of peace, 
of alliance, and of all other sorts and communicates them to the 
Skupshtina as soon as national interests permit; treaties of com¬ 
merce and those which require the expenditure of money or a 
modification of the laws or which affect the rights of citizens 
must be approved by the Skupshtina before they become binding ; 
he convokes the Skupshtina in ordinary or extraordinary sessions ; 
he opens and closes its sessions; he may prorogue it, but not for 
a longer period than two months and not oftener than once in 
the same session without its consent; he may dissolve it, but 
new elections must be held within two months and the new 
assembly must meet within three months. The decree of disso¬ 
lution must be countersigned by all the ministers. 

No act of the King touching state affairs is valid unless 
countersigned by a competent minister who thereby assumes 
the responsibility. In case the throne becomes vacant, the Grand 
Skupshtina shall determine the question of a successor. 

The Skupshtina. — The national Skupshtina, which repre¬ 
sents the country, is ordinary ( obitchna ) or grand ( velika ) ; it is 
composed of deputies freely chosen by the people in accordance 
with the provisions of the constitution. The election is direct 
and voting is secret and by ballot. There are one hundred and 
sixty-six deputies, chosen by districts; the electors comprise all 
Serbian citizens twenty-one years of age and over who pay an 
annual direct tax to the state of five dollars. 

No one can be elected who is not qualified to vote, and in 
addition he must, if a naturalized citizen, have been a resident 
for five years, and must be at least thirty years of age, enjoy full 
political and civil rights, be a permanent resident and pay at 
least six dollars direct tax a year. Deputies who enter the 
service of the state, except ministers, lose their membership but 
may stand for reelection. The term is four years and there is 
an annual session which cannot end until the Budget is passed; 
its sessions are public unless a secret session is demanded by the 
president or ten members, in which case the Skupshtina decides. 
All proposed laws, except those relating to the Budget, must 
first be considered by the Council of State, and all bills must be 
referred to a committee and cannot be considered unless favorably 


510 


THE GOVERNMENT OF SERBIA. 


reported by the committee. Every deputy has the right to 
address questions and interpellations to ministers, who must 
answer before the close of the session. 

The Grand Skupshtina is composed of twice as many members 
as the ordinary Skupshtina and is summoned when it is necessary 
to decide the succession to the throne, to appoint a Council of 
Eegency, to decide upon amendments to the Constitution, to de¬ 
termine upon the alienation or exchange of national territory, 
and when the King deems it necessary to consult it. 

Ministers. — The ministers are the heads of the executive 
departments, except the president of the council of ministers, 
who may be without portfolio. They are appointed and dis¬ 
missed by the King. They have the right of free access to the 
Skupshtina, but may not vote unless they are members; the 
Skupshtina may demand their presence at its sittings. They 
are responsible to the King and to the Skupshtina for all official 
acts ; and may be tried by a special court composed of members 
of the Council of State and the Court of Cassation. 

Council of State. — The Council of State is composed of six¬ 
teen members, eight of whom are appointed by the King and eight 
by the Skupshtina; the King sends to the Skupshtina a list of six¬ 
teen names from which the Skupshtina chooses eight and it in 
turn sends a similar list to the King from which he chooses eight. 
They are appointed for life. The chief functions of the Council 
are to draft, at the invitation of the government, proposals for 
laws, to give its advice upon questions submitted by the gov¬ 
ernment, and to examine all proposals for laws introduced by 
the government or initiated by the Skupshtina, and no discussion 
of any proposed law may take place until the Council has given 
its opinion. The Council may appoint one or more of its 
members to defend its report before the Skupshtina. 

The Courts.—The courts are declared independent and it 
is forbidden to the executive or to the legislative departments to 
interfere in judicial matters. No special tribunals or commissions 
to exercise judicial functions may be created. 

There is a Court of Cassation for the whole country which de¬ 
termines solely questions of law; it also has jurisdiction in cases 
of conflict between the judicial and the administrative authorities. 


THE GOVERNMENT OF SERBIA. 


511 


Below the Court of Cassation are courts of appeal and courts of 
first instance. 

Judges are appointed by the King; they are not liable to re¬ 
moval except by a judgment of a regular tribunal or by the Court 
of Cassation for a disciplinary offence, nor can they be transferred 
without their consent. 

Amendment of the Constitution. — The proposal for an 
amendment, revision, or interpretation of the Constitution may 
originate with the King or with the Skupshtina; if with the King 
it shall be communicated to the Skupshtina which shall at once be 
dissolved and the Grand Skupshtina summoned within four 
months; if the proposal originates with the Skupshtina, it must be 
passed by that body by an absolute majority of the deputies twice 
at an interval of ten days ; thereupon the Skupshtina is dissolved 
and the Grand Skupshtina must be summoned within four months. 

The decision in each case by the Grand Skupshtina shall be by 
an absolute majority of the members, and its decisions, when 
sanctioned by the King, become binding. 


Some Representative Authorities. 

Church, L. F., Story of Serbia, London, 1914. 

Crawford, H., The Balkan Cockpit, London, 1915. 

Cvijic, J., Questions Balkanesques, Paris, 1916. 

Dareste, F. R., Les Constitutions Modernes, 3d ed., Paris, 1910. 
Demombynes, G., Constitutions Europeennes, 2d ed., Paris, 1883. 

Peritch, J., La Nouvelle Constitution au royanme de Serbie, Paris, 1903- 
1904. 

Petrovitch , V. M., Serbia; Her History and Her Customs, London, 1905. 
Sentupery, L., L’Europe Politique, 3d ed., Paris, 1895. 

Temperly , H. W. V., A History of Serbia, London, 1907. 

Ubicini , Constitution (de 1869) de la principaute de Serbie, Paris, 1871. 


XVI. 


THE GOVERNMENT OE RUMANIA. 

By the treaty of Adrianople of September 14, 1829, Moldavia 
and Wallachia acquired the title of Principalities and became 
vassal territories of Turkey. With the cessation of the military 
occupation in 1834, two organic laws, prepared under the influence 
of Russia, were put into effect and served for twenty-seven years 
as the bases of the organization of the Principalities, which during 
that period were under the protection of Russia. By the Treaty 
of Paris of 1856, the Russian pretectorate was abolished and the 
Principalities were recognized as semi-independent states, each 
with its separate Prince; but in 1859 Colonel Cuza was elected 
1 Hospodar,’ or Lord, by each and took the title of Prince Alexander- 
Joan I. The union of the Principalities under the name of Ru¬ 
mania was formally proclaimed at Bucharest and at Jassy on 
December 23, 1861. 

In July, 1864, a statute was promulgated by which a Senate and 
a Council of State was created and in 1866 as a result of a revo¬ 
lution Prince Alexander-Joan abdicated ; a few months afterward 
Prince Charles of Hohenzollern-Sigmaringen was called to the 
throne by popular vote and took the name of Charles I. The 
Sultan confirmed this choice and conferred on him the title of the 
hereditary prince. Charles summoned a constituent assembly for the 
purpose of framing a constitution which on June 30,1866, was pro¬ 
claimed, and, with modifications, is the constitution in force to-day. 

As a result of the Russo-Turkish war of 1877, Rumania was 
recognized as an independent state by the Treaty of Berlin in 1878, 
but upon condition of a modification in the constitution which 
should remove all distinctions and incapacities arising out of re¬ 
ligious beliefs. In 1881 Rumania became a kingdom and its 
Prince took the title of King. 


512 


THE GOVERNMENT OF RUMANIA. 


513 


Constitution. — The constitution of 1866, as amended in 
1879 and 1884, is divided into eight titles dealing with the territory, 
the rights of Rumanians, the powers of the state, finances, the 
army, general provisions, amendment, and temporary and sup¬ 
plemental provisions. 

Rights of Rumanians. — The declaration of the rights of 
Rumanians contains the usual provisions upon liberty of conscience, 
of speech, of the press, of meeting and upon individual freedom, 
protection from arbitrary arrest and prosecution except as pro¬ 
vided by law, inviolability of residence and property, and the right 
of peaceable assembly and of association. In a number of respects 
the exercise of these rights is subject to the provisions of law. 

The Powers of the State. — All power emanates from the 
people and can be exercised only by delegation and in the manner 
prescribed in the constitution. The legislative power is exercised 
by the King and the national assembly, which is composed of two 
houses. The King and each house is a separate part of the legis¬ 
lative power and each can initiate legislation. The interpretation 
of the law belongs solely to the legislative power. The executive 
power is in the hands of the King, and the judicial, of the courts. 

National Assembly. — The national assembly is composed 
of two houses, the members of which represent the nation and not 
merely the district from which they are chosen. Members of 
either house, except ministers who accept a salaried post from the 
government, cease to be members but may again become members 
by a new election. The houses enjoy the ordinary rights and 
privileges of constitutional assemblies. 

Chamber of Deputies.—The chamber is composed of 183 
members, chosen for a term of four years. Members must be 
twenty-five years of age, Rumanian citizens enjoying full civil 
and political rights and domiciled in the country. The electors 
are all male citizens of full age who pay taxes. The electors in 
each district are divided into three colleges; the first comprises 
all owners of property producing an income of at least two hun¬ 
dred and fifty dollars, the second those domiciled and resident in 
urban communes and paying direct taxes to the state of at least 
four dollars a year, and those who exercise the liberal professions, 
officers, state pensioners and those who have been through the 


514 


THE GOVERNMENT OF RUMANIA. 


primary course; the third, all others who pay taxes. Within 
this last college those who can read and write and have an 
income of at least sixty dollars from rural land, priests, and 
village schoolmasters vote directly; all the rest vote indirectly. 
Every fifty indirect electors choose a delegate and the delegates 
vote with the direct electors of the colleges. The first college elects 
seventy-five deputies, the second seventy, and the third thirty-eight. 

The Senate. — The Senate is composed of one hundred and 
twenty members, of whom two represent the universities, eight 
are high ecclesiastical dignitaries, and one hundred and ten are 
elected. The electors in each district are divided into two col¬ 
leges ; in the first are all electors having property yielding am 
annual income of at least $400, and in the second those having 
property yielding from $160 to $400. In each college certain 
individuals are enrolled irrespective of the property qualification. 
In general they include the high officials of state, of the army and 
the courts, members of the professions, professors, and teachers. 

The first college elects sixty senators and the second fifty. 
Senators must be at least forty years of age, Rumanian citizens 
enjoying full civil and political rights, domiciled in Rumania, 
and have an assured income of about $1800. The property quali¬ 
fication is dispensed with in the case of a number of high officials. 
The heir to the throne has a right to membership at eighteen 
but no right to vote until he is twenty-five. The term of senators 
is eight years, and one half are elected every four years. In case 
of dissolution the entire Senate is renewed. 

The King and the Ministers. — The constitution declares 
that “ the constitutional powers of the King are hereditary ” in 
the House of Hohenzollern-Sigmaringen according to the Salic 
law. In the event the throne becomes vacant, choice of a new 
King devolves upon the two Houses sitting together; they must 
meet at once and choose a successor within eight days. During 
the vacancy the Houses united shall choose a commission of three 
who shall exercise the royal power until a King is chosen. The 
person of the King is inviolable. The ministers are responsible, 
and no act of the King is valid unless countersigned by a minister 
who thereby assumes responsibility for it. 

The King appoints and dismisses the ministers j sanctions and 


THE GOVERNMENT OF RUMANIA. 


515 


promulgates the laws, and may refuse his sanction; he may issue 
ordinances to aid in carrying out the laws but cannot suspend 
them; he is chief of the army and he concludes treaties, but to 
become binding they must be approved by the legislative power. 
He summons and closes the sessions of the Houses, though the 
Houses must meet annually on a given date # if not previously 
summoned by the King; he may adjourn the Houses, but not for 
longer than a month and not oftener than once in a session with¬ 
out the consent of the Houses; he may dissolve either or both of 
the Houses, but in case of dissolution, the Houses must be con¬ 
voked within three months. 

Ministers have the right to appear in either chamber and take 
part in the debates but can vote only in the House of which they 
are members. At least one minister must be present before the 
Houses can deliberate, and the Houses can demand the presence 
of ministers. Every member of both Houses has the right to 
interpellate the ministers. 

The judicial power is established by law and no commissions 
or extraordinary courts can be created on any pretext. There is 
a Court of Cassation established by the constitution and inferior 
courts by law. Jury trials are assured for criminal cases and for 
political and press offences. 

Finances. — The Budget is prepared annually by the 
Chamber of Deputies and must be passed by it and sanctioned by 
the King. If the Budget is not passed in time, the executive 
power may expend for the public service in accordance with the 
Budget of the previous year, but no Budget can be extended more 
than a year beyond the year for which it was passed. 

Some Representative Authorities. 

Bellesort , A., La Roumanie contemporaine, Paris, 1905. 

Benger , G., Rumania in 1900. Translation, London, 1901. 

Blaramberg , N., Essai compart sur les institutions et les lois de la Rou¬ 
manie, Bucharest, 1886. 

Dareste, F. R., Les Constitutions Modernes, Paris, 3d ed., 1910. 

Dissescu, C. G., Cursul de drept public roman, Bucharest, 2d ed., 1909. 
Miller , W., The Balkans, London, 1896. 

Pointe , H. Le, La Roumanie Moderne, Paris, 1910. 


XVII. 


THE GOVERNMENT OF BULGARIA. 

By the Treaty of Berlin of 1878 Bulgaria was severed from 
the Turkish Empire and established as an autonomous and tribu¬ 
tary principality mider the suzerainty of the Sultan. During the 
Russo-Turkish War of 1877 the Russians took possession of Bul¬ 
garia and established an imperial commissioner. This commis¬ 
sioner summoned an assembly composed of representatives in part 
appointed by himself, in part chosen by the people and in part 
by virtue of their official positions. The assembly was composed 
of 233 members and met at Tirnovo in February, 1879, and on the 
16th of April proclaimed a constitution. In April of the same 
year the great Sobranje assembled for the choice of a ruler. 
Prince Alexander of Battenberg was chosen and assumed the 
direction of the new principality. He regarded the constitution 
with disfavor, and following a number of dissolutions of the 
assembly he issued a proclamation on the 27th of April, 1881, in 
which he declared that he would resign his throne unless extraor¬ 
dinary power should be conferred upon him for a period of seven 
years in order to reform the administration and to create new 
institutions, particularly a Council of State composed of Bul¬ 
garians ; he also demanded the cessation of the annual meeting 
of the Sobranje and the extension of the current budget to the 
following year with provision for the summoning of a great 
Sobranje at the end of the seven years. 

These conditions were accepted by the Sobranje and until 
September, 1883, Alexander ruled as an absolute prince; it then 
became necessary for him to declare the constitution of 1879 
again in operation but upon condition that it should be amended 

516 


THE GOVERNMENT OF BULGARIA. 


517 


by a great Sobranje. The revision of the constitution was pub¬ 
lished in December, 1883. The principal change was in the 
establishment of a second Chamber which should be composed of 
members in part appointed by the Prince, in part elected by the 
people, and in part of members attending by virtue of their 
offices. This provision for a second Chamber was never accepted 
by the ordinary Sobranje and, therefore, never became effective. 
For the next ten years it could hardly be said that the govern¬ 
ment of Bulgaria was conducted in accordance with constitutional 
provisions. 

By the Treaty of Berlin, the province of East Bumelia was 
constituted a separate principality under the suzerainty of the 
Sultan, but the separation between Bulgaria and East Bumelia 
was an artificial one and was brought to a close in 1885 when 
Bumelia rebelled against Turkish domination, drove out the gov¬ 
ernor, and proclaimed Alexander as Prince. Bumelia thereby 
became a part of Bulgaria. 

In 1893 the Bulgarian constitution was revised and by the 
revision it was provided that there should be a representative 
chosen for every twenty thousand inhabitants. From that time 
on Bulgaria may be said to have been, in form at least, governed 
in accordance with the constitution. In October, 1908, Prince 
Ferdinand proclaimed Bulgaria an independent kingdom and 
assumed the title of Czar. In October, 1918, he abdicated in 
favor of his son Boris, who likewise abdicated within a month, 
and Bulgaria was proclaimed a republic. 

The principal features of the constitution of 1879 were the 
existence of an hereditary prince in a state called a constitutional 
monarchy with popular representation and a popular assembly. 
The Prince, later the Czar, was the head of the state; his person 
was sacred and inviolable; he conducted foreign affairs ; was 
commander-in-chief of the military forces in war and in peace, 
and he had the right of refusing his sanction to laws passed by 
the popular assembly. 

The Sobranje. — Popular representation existed in two 
bodies : the ordinary Sobranje and the great Sobranje. Both were 
elected directly by the people in accordance with the same elec¬ 
tion laws and procedure. The great Sobranje was composed of 


518 


THE GOVERNMENT OF BULGARIA. 


twice as many members as the ordinary Sobranje ; it met onlj 
on special occasions, which were determined in the constitution 
as follows : for the consideration of the question of the cession 
or exchange of territory, for amendment or revision of the con¬ 
stitution, and for the filling of a vacancy in the succession to the 
throne and to receive the oath from a new Prince when he 
ascended the throne. The ordinary Sobranje was elected for a 
period of four years on the basis of universal and direct suffrage 
and consisted of one deputy for every twenty thousand inhabit¬ 
ants. It was the legislative body of the kingdom and was en¬ 
dowed with the ordinary rights and privileges of legislative 
bodies. The executive power was exercised by ministers ap¬ 
pointed and dismissed by the Czar and they were responsible by 
counter-signature for all his acts ; also they could be held legally 
and politically responsible by the Sobranje which controlled the 
executive by means of the necessity for an annual approval of the 
budget. 


Some Representative Authorities. 

U Annuaire, 1880, p. 774 ff., and 1894, p. 682 ff., contain French transla¬ 
tion of the Constitution of 1879 and the revision of 1893. 

British and Foreign State Papers, vol. 70, 1878-1879, p. 1303 ff., contains 
French translation of the Constitution of 1879. 

De Cauny, L., La Bulgarie, d’hier et de demain, Paris, 1914. 

Forbes , N., The Balkans, Oxford, 1915. 

Fox, F., Bulgaria, London, 1915. 

Murray, W. S., The Making of the Balkan States, London, 1913. 

Rankin, R., The Inner History of the Balkan War, London, 1914. 


XVIII. 


THE GOVERNMENT OF GREECE. 

Greece was a Turkish province from the latter part of the 
15th century until its independence was achieved in the revolu¬ 
tion of 1821-1829. During the revolutionary period several con¬ 
stitutions were framed but they were never put into effect. At 
the conference of London in 1830 Greece was declared a kingdom 
and put under the protection of Great Britain, France, and Russia. 
Prince Otto of Bavaria was accepted by Greece as king by the 
treaty of 1832 and ascended the throne January 25, 1833. He 
ruled for eleven years without a constitution but assisted by a 
council of state which had, however, only advisory powers. Fol¬ 
lowing a revolution in 1843, a constituent assembly was sum¬ 
moned at Athens which adopted a constitution in February, 1844, 
modeled on the French constitution of 1830 and the constitution 
of Belgium. 

King Otto was expelled in October, 1862, and in the following 
year Prince George of Denmark was elected and became King 
George the First. This election was made under the guidance of 
the three protecting powers. In the following year a general re¬ 
vision of the constitution was undertaken by the national assem¬ 
bly which had elected the new King, and the constitution thus 
framed was adopted in October, 1864. This is the constitution 
which is in force at the present time. It contains provisions 
regarding the rights of Greek subjects, the powers of the state, 
the King, the ministers, the legislative branch, and the judicial 
power. 

Rights of Greek Subjects. — The constitutional provisions 
touching the rights of Greek subjects provide for equality of all 

519 


520 


THE GOVERNMENT OF GREECE. 


Greeks before the law and a contribution by them without dis¬ 
tinction, in accordance with their wealth, to the expenses of the 
state; titles of nobility may neither be conferred nor recognized ; 
individual liberty, freedom from arrest and imprisonment except 
in pursuance of the forms of law, the right of peaceable assembly, 
of association, and of petition are established; private domicile 
and private property are inviolable and private property may not 
be taken for public use without payment. Likewise there is free¬ 
dom of speech and of the press. 

Powers of the State. — All power emanates from the nation, 
and can be exercised only in the manner established by the consti¬ 
tution. The legislative power is exercised jointly by the King and 
by the chamber ( Boule ). Laws may be initiated either by the 
chamber or by the King, who exercises his initiative through min¬ 
isters. Proposals relating to increase of public expense for the 
establishment of pensions, or in general for any individual inter¬ 
est, must be originated by the chamber. Authoritative interpre¬ 
tation of the laws belongs to the legislative authority. 

Executive power belongs to the King, who exercises it through 
responsible ministers appointed by him. 

The judicial authority is exercised by the courts, whose judg¬ 
ments are executed in the name of the King. 

The King. — The King cannot be held responsible and his 
person is inviolable. Responsibility rests upon his ministers, and 
no act of his is valid unless countersigned by a competent minis¬ 
ter who thereby assumes the responsibility. Ministers are ap¬ 
pointed and dismissed by the King. 

The King is the supreme head of the state; he commands the 
military and naval forces ; declares war ; makes treaties of peace, 
of alliance and of commerce; he must give information to the 
chamber, with the necessary explanations concerning these 
treaties, as soon as the safety of the state permits. Treaties of 
commerce and other treaties containing provisions which require 
the sanction of the law, or which affect the Greeks individually, 
must receive the consent of the chamber before they become 
binding. The King has the power to issue ordinances necessary 
to carry out the laws but an ordinance may never suspend the 
operation of a law. 


THE GOVERNMENT OF GREECE. 


521 


Laws must be sanctioned and promulgated by the King. A bill 
passed by the chamber which does not receive the sanction of 
the King within a period of two months following the close of a 
session is regarded as rejected by the King. 

The King must convoke the chamber at least once a year in 
ordinary session and he may summon extraordinary sessions as 
of^en as he deems it necessary; he opens and closes each session 
and has the right to dissolve the chamber, but the ordinance of 
dissolution, countersigned by the ministers, must contain a pro¬ 
vision for an election within two months and for a re-assembling 
of the chamber within three months ; the King has the right to 
adjourn or to prorogue a session of the chamber but not for a 
period longer than forty days nor more than once in the same 
session without the consent of the chamber. In the event of a 
vacancy in the succession to the crown an assembly composed of 
twice as many members as the chamber chooses a King by a vote 
of a two-thirds majority of all the members. 

Ministers. — The ministers, appointed and’dismissed by 
the King, have free access to the chamber and have the right to 
be heard at any time they choose, but they may not vote unless 
they are members. The chamber in turn may require the pres¬ 
ence of ministers. The ministers may not be relieved of their re¬ 
sponsibility by any written or verbal order of the King ; they may 
be accused by the chamber and tried before a special court. 

Ministerial political responsibility to the chamber is secured 
by convention rather than by law, though the numerous constitu¬ 
tional provisions relating to the relations between the chamber 
and the ministers, combined with the unquestioned supremacy 
of the popular will, would make any other result out of harmony 
with the entire constitutional arrangements. 

The Chamber. — The chamber meets annually on the first 
of November for a session which may not be less than three 
months nor longer than six. It deliberates in public but may, 
upon the demand of ten members, decide by a majority vote to 
hold a secret session. No taxes may be levied or collected unless 
previously voted by the chamber and sanctioned by the King. 
The naval and military contingents and the budget must be 
passed annually. Members of the chamber enjoy the ordinary 


522 


THE GOVERNMENT OF GREECE. 


immunity from arrest and freedom from responsibility for what 
they may say in the chamber. The number of deputies in each 
province is fixed at the ratio of one to every 16,000 inhabitants. 
At present there are 332 members in the chamber, who are elected 
for a maximum period of four years. Qualifications of a deputy 
are Greek citizenship, enjoyment of full civil and political rights 
for a period of two years previous to the election, at least twepjy- 
five years of age and the qualifications of an elector. The elector¬ 
ate is based upon universal manhood suffrage. 

Council of State. — By an amendment to the constitution 
in 1911 a council of state was established as a substitute for a 
second chamber of the legislative body. It has the duty of ex¬ 
amining all proposals for laws and of annulling official decisions 
and acts contrary to the law. 

The Judicial Power. — Judges are appointed by the king 
in accordance with the law. There are a supreme court, courts of 
appeal, and courts of first instance. Judges hold office for life 
and may not be removed save by judicial sentence. The consti¬ 
tution forbids the creation of judicial commissions and extraordi¬ 
nary tribunals. The sessions of the court are ordinarily public 
and the decisions must be accompanied by statement of the 
reasons therefor, and must be pronounced in public. 

The constitution contains a prohibition against a total revision, 
but revisions that are not fundamental in character may be pro¬ 
posed after a lapse of ten years from the promulgation of the con¬ 
stitution if the necessity arises. Such a revision must be de¬ 
manded by the chamber in two votes passed by two-thirds ma¬ 
jority, providing the second vote is taken at least one month after 
the first and that the revision shall be carried out by a newly 
elected chamber. 

Some Representative Authorities. 

Cassavetti, D. J., Hellas and the Balkan Wars, London, 1914. 

Dareste, F. R., Les Constitutions Modernes, 3d ed., Paris, 1910. 
Demombynes , G., Les Constitutions Europeennes, 2d ed., Paris, 1883. 
Deschamps , G., La Grece d’aujourd’hui, Paris, 1910. 

Martin , P. F., Greece of the Twentieth Century. 

Saripolis , N. K., Das Staatsrecht des Konigreichs Griechenland, Vol. 8 
of Das offentliche Recht der Gegenwart. 


XIX. 


THE GOVERNMENTS OF RUSSIA AND TURKEY. 

Russia. 

Autocracy reached its highest development in Russia, where 
the power of the Czar was, until 1906, unlimited by law. Pre¬ 
vious to that time certain fundamental laws had been issued but 
they had been issued by an imperial ukase and could be with¬ 
drawn or modified at the pleasure of the Czar. Following the 
war with Japan a revolution broke out in 1905, and in February, 
1906, there appeared two imperial ukases, by one of which a 
Council of the Empire and by the other, a Douma , or popular 
house, was created. The Czar, however, retained the “ supreme 
autocratic power ” of all the Russias, though he exercised the 
legislative power in conjunction with the Council of the Empire 
and the Douma. 

All executive and administrative functions rested with the 
Czar; he appointed and dismissed the ministers ; he was head 
of the army and navy; he declared war and concluded peace and 
made treaties, but all of his acts must be countersigned by a 
minister. 

The Council of the Empire was composed of members, partly 
appointed by the Czar and partly elected, but the number ap¬ 
pointed could not exceed that of the elected members. The latter 
were chosen by a variety of organizations, including the church, 
the nobles, chambers of commerce, the universities and the zem¬ 
stvos , for a term of nine years, one third retiring every three 
years. 

The Douma was composed of 442 members elected by the 
people under a complicated system of indirect election for a term 

523 


524 THE GOVERNMENTS OF RUSSIA AND TURKEY. 

of five years, but could be dissolved by the Czar. The Council of 
the Empire and the Douma had equal rights in the matter of 
legislation, and each might propose laws ; but the initiative of 
all laws amending the fundamental laws rested with the Czar. 
In the matter of the Budget, credits necessary for the payment 
of the public debt and the other obligations contracted by the 
government could not be refused or lessened and the expenses of 
the ministry of the court were not subject to consideration by 
the Council and the Douma unless they exceeded the Budget of 
1906. 

In the event the Budget was not adopted by the beginning of 
the budgetary year, the last Budget remained in force with such 
additions as were necessary by reason of laws subsequently 
adopted. 

The Douma never acquired a position of influence and control, 
but survived until the revolution in 1917. As a result of the 
military disasters and scandals, including the betrayal of the 
army to the Germans, the Czar was deposed in March, 1917, and 
a republic proclaimed under a provisional government. A con¬ 
stituent assembly was to be chosen to determine a constitution, 
but before it assembled the Bolshevik regime was inaugurated. 
Soldiers and Workmen’s Councils were established in Petrograd 
and other places and the radical Socialist element secured control 
of the machinery of the central government. Lenine, as presi¬ 
dent of the Council, and Trotzky, as Foreign Minister, have been 
the controlling forces in what government there has been. 

A condition bordering on anarchy has existed for more than a 
year. The Ukraine proclaimed its independence as a republic; 
other parts of the Empire broke away from the central authorities 
and proclaimed republics, notably Murman in the north and 
Siberia, and more recently an All-Bussian government has been 
proclaimed with the object of reuniting the separate parts. 

The Lenine-Trotzky government made peace with the Central 
Empires by the Brest-Litovsk Treaty, by which several of the 
western provinces passed under German control. The United 
States and the Allies have from the first taken the position that 
this treaty was secured by treachery and bad faith and as victors 
they have compelled the Central Powers to abandon it. 


THE GOVERNMENTS OF RUSSIA AND TURKEY. 525 


It is not possible to tell what the outcome in Russia will be, 
but it is not probable that autocracy will be reinstated. It is 
equally unlikely that the Bolsheviki will much longer retain the 
power. 

Turkey. 

The government of Turkey has always been regarded as an ab¬ 
solute monarchy despite the fact that it at times has had the 
form of constitutional arrangements. In 1856 at the Conference 
of Paris, following the Crimean War, Turkey was recognized as 
a member of the Family of Nations and it was anticipated that 
internal reforms would be carried out, assuring equality before 
the law, respect for private property, liberty of religious beliefs, 
equality in taxation, public trials and the abolition of confiscation 
and torture, but the promised reforms were not realized. 

Under pressure from the European powers, Sultan Abdul 
Hamid II. proclaimed a constitution in 1876 providing for a 
Senate whose members were appointed for life and a Chamber of 
Deputies. The first parliament met on the 19th of March, 1877, 
but the war with Russia of that year led to the indefinite pro¬ 
roguing of that body in 1878. From that time until 1908 the 
constitution was a dead letter, but under the influence of the 
Young Turk party, which then came into power, the constitution 
of 1876 was again proclaimed and in the following year was re¬ 
vised. Though the Parliament met thereafter, the government 
remained autocratic. No real control was exercised by the 
Chamber of Deputies. 


XX. 


THE GOVERNMENT OF JAPAN. 

The constitution of Japan was promulgated by the Emperor 
on February 11, 1889, and in accordance with its preamble came 
into force with the opening of the first session of the Diet on 
November 29, 1890. In an imperial rescript of October 12, 1881, 
the Emperor had declared his intention of promulgating a con¬ 
stitution so soon as the country was ready for it; and when it is 
recalled that Japan was opened to foreigners only twenty-one 
years before the constitution was promulgated, some conception 
may be gained of the rapidity with which the country had pro¬ 
gressed and some allowance be made for the inexperience shown 
in the early attempts at constitutional government. To under¬ 
stand the government of Japan it must be borne in mind that for 
centuries the country had been under the rule of an Emperor in 
whom was vested in theory the supreme power. During several 
centuries, to be sure, the Emperors enjoyed no actual authority, 
the government being in the hands of the Shoguns. Nevertheless 
there centered about the Emperors a feeling akin to religious awe 
and reverence, and when the last of the Shoguns in 1868 volun¬ 
tarily gave back his power into the hands of the Emperor, the 
combination of veneration and power made him the most absolute 
of rulers. But the Emperor pursued an enlightened and liberal 
policy and sought to adapt the Japanese government along with 
the rest of the national life to Western models. Accordingly, 
following the rescript of 1881, a commission was appointed, of 
whom Prince Ito was the most conspicuous member, to study the 
constitutions of the European countries and the United States, 
and to frame a constitution for Japan. 

The effects of the centuries of absolutism and feudalism through 
which Japan had passed could not be thrown off in the brief 

626 


THE GOVERNMENT OF JAPAN. 


527 


space of a generation, and the constitution must be viewed in the 
light of this history. The remarkable fact is not that the con¬ 
stitution of Japan is less liberal than the most advanced constitu¬ 
tions of the Western world, but that a constitution should have 
been given at all within so brief a space of time. 

When one takes into consideration the steady progress toward 
a greater liberalism in the government and the equally steady de¬ 
velopment of democracy among the people, no surprise will be 
felt on finding that custom has greatly modified the spirit of the 
government if not the letter of the constitution in the twenty- 
nine years of its existence. 

The Emperor. — It was natural in view of the history of 
Japan that the sovereignty of the Empire should be regarded as 
in the Emperor; but the constitution provides that it shall be 
exercised in accordance with its provisions. The Emperor is 
proclaimed sacred and inviolable; he exercises the legislative 
power with the consent of the Diet; he sanctions the laws and 
orders them promulgated and executed; he convokes, opens, 
closes and prorogues the Diet, and he may dissolve the House of 
Representatives; when the public safety demands, or to avert 
public calamities, he may, if the Diet is not sitting, issue im¬ 
perial ordinances in place of laws, but such ordinances must be 
submitted to the Diet at its next session and if not approved by 
the Diet, they are invalid for the future. He has also the right 
to issue ordinances to carry out the laws, to preserve the public 
peace and order, and to promote the welfare of the people, but 
these ordinances shall not in any way alter the existing laws. 

The Emperor determines the organization of the different 
branches of the administration, the salaries of all civil and mili¬ 
tary officers, and appoints and dismisses the same. He is com- 
mander-in-chief of the army and navy and determines their 
organization and peace standing; he declares war, makes peace 
and concludes treaties : he confers titles of nobility, rank, orders, 
and other marks of honor, and has the right to grant pardons, 
amnesty, and commutation of punishments. This is a formidable 
list of powers and were they exercised directly by the Emperor 
would make him the most powerful monarch ruling to-day, but 
all laws, imperial ordinances, and imperial rescripts that relate to 


528 


THE GOVERNMENT OF JAPAN. 


state affairs must be countersigned by a minister of state. The 
constitution provides that the ministers of state shall give advice 
to the Emperor and shall be responsible for it. To whom they are 
to be responsible the constitution does not state but the custom may 
be regarded as established that they are responsible to the Diet. 

The Privy Council. — An imperial ordinance of 1888, 
amended in 1890, provided that the Privy Council should consist 
of a President, a Vice-President, twenty-five Councillors, a Chief 
Secretary, and five Secretaries. Among the Councillors are ex 
officio the ministers of state who form the Cabinet. The Council 
may advice the Emperor upon doubtful points relating to articles 
of the constitution and to laws and ordinances dependent upon 
the constitution, upon proclamations of a state of siege, certain 
imperial ordinances, treaties, the organization of the Privy Coun¬ 
cil and other matters specially called for. It may be consulted 
in times of political crises concerning the organization of the 
cabinet and all cabinet measures may be referred to it, either 
before presentation to the Diet or after acceptance by the Diet. 
It is the highest body of constitutional advisers to the Emperor 
and in this respect has taken the place, in part, which the Cabinet 
would naturally fill. Those who have been seeking to establish 
complete parliamentary government and ministerial responsibility 
to the Diet regard the power of the Privy Council as a usurpa¬ 
tion and wish to see it limited. The so-called Elder-Statesmen, 
the Grenro, composed of the survivors of the men who brought 
about the Restoration of 1868, are an extra-constitutional body 
which has occupied a position of influence next to the Emperor 
and the Privy Council. These men have rendered great service 
to their country, but they and their position are not in harmony 
with the development of constitutional government and popular 
institutions. They have been the power behind the throne, who, 
without official position, have nevertheless been called upon for 
advice in political crises. Death has already removed all but 
two or three of them and this anomaly will soon vanish entirely. 

The Cabinet. — The Cabinet as such is not mentioned in 
the constitution, which speaks only of Ministers of State who are 
ten in number; the Minister President of State, the Ministers of 
Foreign Affairs, of Home Affairs, of Finance, of War, of the Navy, 


THE GOVERNMENT OF JAPAN. 


529 


of Justice, of Education, of Agriculture and Commerce, of Com¬ 
munications. There is also a Minister of the Imperial Household, 
but he is not a member of the cabinet. 

The ministers may be members of either House of the Diet and, 
whether members or not, have the right to speak in either House. 

The earlier view and practice was that the ministers were 
responsible to the Emperor alone, who had the right to appoint 
and to dismiss them at pleasure, but this view has begun to give 
way before the demand for the control by the Diet; in 1914 Count 
Okuma dissolved the House of Representatives and appealed to 
the people in a general election in which he obtained a large 
majority. Party government may be regarded as an established 
fact, but the change from ministerial responsibility to the Emperor 
to responsibility to the Diet has not yet been fully accomplished, 
although the tendency is in this direction and the present state of 
affairs may be regarded as transitional. Nowhere outside of 
Japan is there an upper house, not popular in character, which 
has maintained it supremacy over the lower popular house; and 
it is reasonable to suppose that with the further development of 
popular control of the government, Japan will prove no exception 
to the rule. For the first time in its history, a real Liberal party 
is at present in power in Japan and further increase in the power 
of the House of Representatives may be expected. 

The Diet. — The Imperial Diet is composed of the House 
of Peers and the House of Representatives. Though the consti¬ 
tution vests the legislative power in the Emperor with the con¬ 
sent of the Diet, the development of parliamentary government 
has deprived the Emperor of the power formerly attributed to 
him of vetoing laws passed by the Diet. 

Bills may be initiated by the government and by each of the 
Houses and the two Houses have the same rights with respect to 
all measures except that the Budget must be first laid before the 
House of Representatives. The House of Peers, however, has 
won the right to reinsert in the Budget items which have been 
stricken out in the House of Representatives. 

The Diet meets annually and the session lasts three months, 
but may be prolonged by imperial order. Extraordinary sessions 
may be summoned by the Emperor. The deliberations of the 


530 


THE GOVERNMENT OF JAPAN. 


Houses are public, but secret sittings may be held upon the de¬ 
mand of the government or upon resolution of the House. No 
member of either House may be held responsible outside the 
respective Houses for any opinion expressed or for any vote 
given in the House, but for his opinions expressed in public 
speeches or in writing a member is amenable to the general law. 
Members are free from arrest during the session for all ordinary 
offences, not of a flagrant character and not connected with internal 
disorder or foreign trouble, unless with the consent of the House. 

The Emperor appoints the President and the Vice-President of 
the House of Peers from among the members for a period of 
seven years, and the President and Vice-President of the House 
of Representatives from among the three candidates respectively 
elected by the House for each office. 

The Presidents of the Houses receive an annual allowance of 
5000 yen, the Vice-Presidents 3000 yen , while the elected and 
appointed members of the House of Peers and the members of 
the House of Representatives receive 2000 yen} They also re¬ 
ceive a certain allowance for travelling expenses — but members 
who are in the service of the government do not receive such 
annual allowance. 

Sections and Committees. — Each House divides itself into 
sections by lot and the sections elect, from among the members 
of the House, an equal number of members to the standing com¬ 
mittee, which is divided into branches according to the require¬ 
ments of business. Special committees are chosen by the House 
for the examination of particular matters. 

House of Peers. — The constitution provides merely that 
“ the House of Peers shall, in accordance with the ordinance con¬ 
cerning the House of Peers, be composed of the members of the 
Imperial Family, of the orders of nobility, and of those pers'ons 
who have been nominated thereto by the Emperor.” 

By the Imperial ordinance of February 11, 1889, the composi¬ 
tion of the House of Peers was determined as follows : The mem¬ 
bers of the Imperial family; princes and marquises; counts, 
viscounts, and barons who have been elected thereto by the mem¬ 
bers of their respective orders; persons who have been elected, 

1 A yen equals about fifty cents. 


THE GOVERNMENT OF JAPAN. 


531 


one member for each city and prefecture, by and from among the 
tax payers of the highest amount of direct national taxes on land, 
industry or trade therein, and who have afterwards been nomi¬ 
nated thereto by the Emperor. 

The members of the Imperial family take their seats upon 
attaining their majority, the princes and marquises at the age of 
twenty-five, the members of the orders of counts, viscounts and 
barons at the age of twenty-five; the latter are elected by the 
orders for a term of seven years, and their number shall not 
exceed one-fifth of the entire number of the respective orders. 

The Emperor may appoint for life any man thirty years of age on 
the ground of meritorious services to the state, or for his learning. 

One member is elected in each city and prefecture by and from 
among the fifteen male inhabitants thereof above the age of 
thirty who pay the highest amount of direct national taxes on 
land, industry, or trade. Those so chosen must be appointed by 
the Emperor and serve for a term of seven years. The number 
of members appointed by the Emperor for meritorious services, 
for their learning and from among the highest tax payers, shall 
not exceed the number of members having the title of nobility. 

The number of members of the House of Peers is variable and 
at present is 374. The House of Peers has been a very conserva¬ 
tive body. Having an equal voice with the House of Bepresenta- 
tives in all legislation it has blocked progressive and radical 
legislation; being secure of its tenure of office, since it cannot be 
dissolved, it has proved stronger than the House of Bepresenta- 
tives. With the further development of parliamentary govern¬ 
ment and a firmer establishment of ministerial responsibility, it 
will be indeed strange if the House of Bepresentatives does not 
become the stronger. 

House of Representatives. — The only constitutional pro¬ 
vision respecting the House of Bepresentatives is that it shall be 
composed of members elected by the people according to the pro¬ 
visions of the Law of Election. 

Any male Japanese subject of thirty years of age is eligible for 
election except the heads of noble families, men in the active 
service of the army or navy; students; Shinto priests, ministers, 
priests and teachers of religion of all kinds j certain government 


532 


THE GOVERNMENT OF JAPAN. 


officials, government contractors, and persons suffering from legal 
disabilities. 

Qualifications for electors are the age of twenty-five, permanent 
residence in the district for not less than one year previous to the 
date of drawing up the electoral list, and payment of direct national 
taxes to the amount of not less than ten yen. Inasmuch as voting is 
by secret ballot and the elector must write the name of the candidate 
upon his ballot, the ability to write is really a qualification. 

There are at present 381 members who are chosen in electoral 
districts, but each elector votes for one person only. The term of 
members is four years unless sooner terminated by dissolution of 
the House. 

Rights and Duties of Subjects. — Fifteen articles of the 
constitution deal with the rights and duties of Japanese subjects, 
but in almost every instance the rights are to be enjoyed subject 
to the limits provided by law — and in many instances these limits 
have set very great restrictions from the standpoint of American 
ideas of individual rights. The constitution in fact affords no 
absolute guarantees of civil rights and liberties. There has been, 
however, a constant and rapid extension of popular liberties through 
legislative enactment. The extension of the suffrage, greater 
liberty of the press and of speech, of public meeting and political 
association and reform of the criminal law are evidence of the 
growth of popular rights. 

Political Parties. —When the constitution was promul¬ 
gated there were no political parties for there had been no oppor¬ 
tunity or occasion for their development. The intervening period 
has witnessed at least the beginning of party organization and 
for the past ten years parties have assumed somewhat of the 
position and functions - of parties in other constitutional states. 
The development of parties has gone hand in hand with the es¬ 
tablishment of a system of cabinet responsibility. 

The weakness of Japanese parties lies in the fact that they 
have centered around individuals rather than principles. The 
feudal conception of personal allegiance has lingered on into the 
new era, but with the passing away of the generation that knew 
the old regime and the coming into power of the younger men the 
character of parties is becoming less personal j policies, not men, 


THE GOVERNMENT OF JAPAN. 


533 


are forming the cohesive element. All of which is but further 
evidence of the complete acceptance by the Japanese of the 
political conceptions and arrangements of the Western world. 

The Judiciary. — Justice is administered by the courts 
according to law in the name of the Emperor. He is the fountain 
and source of law and of justice. The organization and jurisdic¬ 
tion of the courts is left entirely to the law. The constitution 
affords protection to judges through the provision that “ no judge 
shall be deprived of his position, unless by way of criminal sen¬ 
tence or disciplinary punishment,” and to individuals by requiring 
that trials and judgments shall be public, but this requirement may 
be suspended by law or by the court if publicity might be prejudi¬ 
cial to peace and order or to the maintenance of public morality. 

Suits relating to rights alleged to have been infringed by 
illegal measures of the executive authority come before the court 
of Administrative Litigation and not before the ordinary courts of 
law. The courts have no power to interpret the constitution ; that 
function belongs exclusively to the Emperor who was its author. 

Amendment of the Constitution, — In consonance with its 
origin as a gift from the Emperor, the power of initiating amend¬ 
ments rests with him ; he must submit a proposed amendment to 
the Diet. The amendment cannot be debated in either House un¬ 
less two-thirds of its members are present nor can an amendment 
be passed by either House unless approved by two-thirds of the 
members present. 


Some Eepresentative Authorities. 

Clement , E. W., Constitutional Imperialism in Japan, Proceedings of 
the Academy of Political Science, Vol. VI., No. 3, N.Y., 1916. 

Ito, Commentaries on the Constitution of Japan, Tokyo, 1889. 

Jyenago, The Constitutional Development of Japan, Baltimore, 1891. 
Kawakami , K. K., The Political Ideas of Modern Japan, Tokyo, 1903. 
McLaren , Japanese Government Documents, Asiatic Society of Japan, 
Tokyo, 1914. 

Masoaka, Japan to America, N.Y., 1914. 

Satoh, Evolution of Political Parties in Japan, Tokyo, 1914. 

Uyehara, The Political Progress of Japan (1867-1909), N.Y., 1910. 


XXI. 


SUMMARY: CONSTITUTIONAL AND ADMINIS¬ 
TRATIVE DEVELOPMENTS. 

Continuity of Development. — Erom the dim morning 
hours of history until now, the law of coherence and continuity 
in political development has suffered no serious breach. Human 
choice has in all stages of the great world-processes of politics 
had its part in the shaping of institutions; but it has never been 
within its power to proceed by leaps and bounds : it has been 
confined to adaptation, altogether shut out from raw invention. 
Institutions, like morals, like all other forms of life and conduct, 
have had to wait upon the slow, the almost imperceptible forma¬ 
tions of habit. The most absolute monarchs have had to learn 
the moods, observe the traditions, and respect the prejudices of 
their subjects; the most ardent reformers have had to learn that 
too far to outrun the more sluggish masses was to render them¬ 
selves powerless. Revolution has always been followed by re¬ 
action, by a return to even less than the normal speed of political 
movement. Political growth refuses to be forced; and institu¬ 
tions have grown with the slow growth of social relationships ; 
have changed in response, not to new theories, but to new circum¬ 
stances. 

The Order discoverable in Institutional Development is 

not, indeed, the order of perfect uniformity: institutions, like 
the races which have developed them, have varied infinitely ac¬ 
cording to their environment. Climate, war, geographical situation, 
have shaped them: the infinite play of human thought, the infinite 
many-sidedness of human character have been reflected in them. 
But the great stages of development have remained throughout 

534 


SUMMARY. 


535 


clear and almost free from considerable irregularities. Tested 
by history’s long measurements, the lines of advance are seen to 
be singularly straight. 

Course of Development in the Ancient World. —If the 

bond of kinship was at first clear and unmistakable, it must ere 
long have become much less defined in the broadened Family. 
When the Family became merged in the still wider Community, 
solidarity remained and a strong sense of kinship, but the reality 
of kinship had no doubt largely departed, and law had begun to 
take on a public character, to bear the sanction of all rather than 
the sanction of a single supreme person. Kinship was typified 
still in the hereditary character of the kingship; but the king 
was now the representative of the community rather than its 
master. The Community developed into the city-state: and 
further than this the ancient peoples did not go. In Home and 
in the great city-states of Greece the conception of citizenship 
supplanted the idea of kinship. The state became virtually 
personified in the thought of the time. It was the centre of 
civic affection and the object of all civic virtue. The public 
officer ruled not in his own name but in the name of the State. 
Around Home at last there grew up a vast Empire; but it was 
j Rome’s Empire, — the world had fallen into the hands of a city, 
and the only citizenship that Caracalla could bestow was the 
citizenship of Koine. This city-statehood was the last word of 
the ancient world in politics. 

The Feudal System and the Modern Monarch. — When 
the Germans emerge upon the European field we have the State 
in a new aspect. Nations are moving in arms, and the Host 
is the State. Commanders of Hosts are the kings of the new 
order of things. The Host settles on the lands of the old Koman 
dominions, and that military tenure is developed which we have 
learned to call the Feudal System. This Feudal System, when it 
has worked its perfect work, in such countries as France and 
Germany, brings forth still a third type of kinship: we presently 
have the king who owns his kingdom as supreme feudal lord: the 
king who, having absorbed fief after fief, at last possesses his king¬ 
dom by a perfected legal title; the king whose realm is his estate. 
This is the king who becomes the sole source of law and of justice, 


586 


SUMMARY. 


the king who, in our day, has granted out of his abundant grace 
rights and constitutions to his people. 

England’s Contribution. — Where the Feudal System fails 
of its full fruitage, as in England, where freehold estates are not 
entirely blotted out, where tenure of the king as overlord is a 
theory but never a reality, and where local self-government obtains 
a lasting rootage in the national habit, political development takes 
another course. There political liberty abides continually, in one 
form or another, with the people, and it is their operative power 
which gives to liberty expansion, and which finally creates the 
constitutional state, the limited monarchy, the free self-governing 
nation. Out of the fief grew the kingdom; out of the freehold 
and local self-government grew the constitutional state ; out of 
the constitutional state grew that greatest of political develop¬ 
ments, the free, organic, self-conscious, self-directing nation, with 
its great organs of popular representation and its constitutional 
guarantees of liberty. 

The Romans and the English. — In the general history of 
European development two nations stand forth preeminent for 
their political capacity: the Roman nation, which welded the 
whole ancient world together under one great organic system of 
government, and which has given to the modern world the ground¬ 
work of its systems of law; and the English nation, which gave 
birth to America, which has “ dotted over the whole surface of 
the globe with her possessions and military posts,” and from 
which all the great nations of our time have borrowed much of 
their political thought and more of their political practice. And 
what is most noteworthy is this, that these two nations closely 
resemble each other, not only in the mental peculiarities which 
constitute the chief element of their political strength, but also in 
the institutional foundations which they have successively laid 
for their political achievements. 

Likenesses between the Two Imperial Nations. — Both 
have been much stronger in creating and working institutions than 
in explaining them: both of them have framed such a philosophy 
as they chose to entertain ‘ after the fact ’: neither has been too 
curious in examining the causes of its success or in working out 
logical sequences of practice. Above all, neither has suffered any 


SUMMARY. 


537 


taint of artificial thoroughness to attach itself to its political 
methods. Slowly, and without much concern for theories of gov¬ 
ernment, each has made compromise its method, adaptation its 
standing procedure. Illogical, unimaginative their mode of pro¬ 
cedure must be said to have been throughout, a mode for slow, 
practical men, without speed or boldness. Revolution has never 
fallen within their calculations; even change they have seldom 
consciously undertaken. If old institutions must perish, they 
must perish within the Roman or English system by decay, by 
disuse, not by deliberate destruction: if new institutions must be 
constructed, they must be grafted on the old in such wise that 
they may at least seem to be parts of the same stock, and may 
partake as largely as may be of that one vitalizing sap, old cus¬ 
tom. As the Roman Senate, from being the chief motive power 
of the state, came at last to exercise only such prerogatives as the 
people and the people’s officers suffered it to retain, so the Eng¬ 
lish House of Lords, from being the single coadjutor of the king 
in legislation, has been reduced to a subordinate part which it 
plays only upon a sort of sufferance, and all without any sudden 
or premeditated step of revolution. As the consular power in 
Rome was slowly pared down to be dealt out in parts to plebeian 
officials, so has the royal power in England been piece by piece 
transferred to the hands of ministers, the people’s representatives. 
The whole political method of the two peoples is the same: the 
method of change so gradual, so tempered with compromise and 
discretion, so retarded and moderated by persistent habit that 
only under the most extraordinary pressure is it ever hastened 
into actual revolution. 

Popular Initiative in Rome and England. —Doubtless 
much of this likeness of temperament and method is due to the 
fact that both in Rome and in England it has been the nation, and 
not merely a small governing class, which has been behind politi¬ 
cal change. The motive power was popular initiative: the process 
of change was the labored process of legislation, the piece-meal 
construction which is to be compounded out of the general 
thought. Measures have had in both cases to be prepared for the 
general acceptance; and popular action, wherever it is the wont 
for the people to act, is always conservative action. A king’s law- 


538 


SUMMARY. 


making is apt to be rapid, thorough, consistent; but a nation’s 
law-making, devised and struggled for piece by piece, cannot be. 
The plebeians in Rome fighting inch by inch towards the privi¬ 
leges which they coveted, the people in England making their 
way by long-protracted efforts towards the control they desired 
to exercise, have had to advance with painful slowness, and to 
be content with one piece at a time of the power they strove 
for. 

Rome’s Change of System under the Empire. —With the 
full establishment of imperial forms of government Rome lost the 
conservative habit of her republican period. The methods of 
the first emperor, indeed, were slow and cautious in the highest 
degree: Augustus avoided all show or name of imperial power. 
Carefully regardful of republican sentiment and spirit, which he 
knew to be not yet extinct, he simply accumulated to himself one 
by one every republican office, professing the while merely to 
exercise for somewhat extended periods, — periods which steadily 
lengthened from terms of years to tenure for life, — but by free 
gift of the Senate and people, the old offices of self-government. 
But later emperors were by no means so careful or so considerate 
of popular prejudices: their power was open, bold, oftentimes 
even wanton. And with these changes in the nature of the 
government came radical changes in political method: there 
came the wilful creation of new offices known to no Roman 
custom, the constant breach of old practices hallowed by imme¬ 
morial Roman habit,—the whole familiar process, in brief, of 
arbitrary power. What Rome gained thus in discipline, in mili¬ 
tary efficiency, she lost in political capacity. For that capacity 
so characteristic of the Romans and the English, the capacity 
namely for political organization, is beyond question inseparably 
connected with popular initiative, with national self-direction, 
with self-government. 

Fundamental Contrast between English and Roman 
Political Method. — The most striking contrast between the 
English and the Romans consists in a vital and far-reaching 
difference in political organization. What I have said touching 
the national action of the two peoples, the slow, conservative 
concert of the people as a whole in the origination and effectua- 


SUMMARY. 


539 


tion of policy must be understood in different senses in the two 
cases. It was true of the Romans only during the period of 
the Republic and while the Roman people could take a direct 
part in affairs. The Teuton brought into force, particularly in 
England, the principle of representation , that organization by 
representative assemblies which enabled the people to act over 
wide areas through trusted men elected to speak and act in 
their stead, and which thus enabled the organization of the 
nation to extend without loss of vitality. Of such methods the 
Roman knew nothing. Only the people of the city of Rome had 
any part in Roman legislation, for the Roman had conceived of 
no way of acting by a delegation of the law-making power on 
the part of the people. The equal and concerted action of 
widely diffused populations through the instrumentality of 
representation was utterly unknown to the ancient world. The 
county court with its reeve and four selected men from each 
township, the parliament with its knights from the shire and 
its burgesses from the towns, instrumentalities so familiar every¬ 
where now that the world has gone to school to the English in 
politics, were for a long time peculiar to England in their best 
features. They were the peculiar fruit of Teutonic political 
organization where that organization had grown most apart from 
the Roman influence, in England, not on the Continent, pene¬ 
trated as the continental lands were everywhere by the Roman 
example. Rome had had no similar means of holding her vast 
populations together in active political cooperation and living 
union. Therefore, as her conquests spread, her system became 
more and more centralized and autocratic. The English could 
hold populations together, however large they might be, by 
means of representative assemblies; but the Roman, who knew 
no method of admitting scattered peoples to a part in the central 
government, who knew no popular assemblies except those in 
which all citizens should be actually present and vote, could 
nold an extended empire together only by military force and 
the stern discipline of official subordination. 

The Development of Legislatures. — Perhaps the most 
distinguishing feature of modern as compared with ancient 
politics is the difference between the sphere, the mode, and the 


540 


SUMMARY. 


instrumentalities of legislation now, and the character and 
methods of legislation among the classical nations. Repre- 
sentative law-making bodies are among the common-place insti¬ 
tutions of the political world as we know it: but no such 
assembly was ever dreamed of by any ancient politician, Greek 
or barbarian. Every citizen either took direct part in legislation 
or took no part in it at all. Aristotle believed, consequently, 
that no free state could exist with a wide territory or a popula¬ 
tion so scattered as to be unable to attend the assemblies. But 
what the Greeks and Romans did not know at all the Teuton 
seems to have known almost from the first: representation is 
one of the most matter-of-course devices of his native polity, 
and from him the modern world has received it. 

Oar early colonial history furnishes at least two very curious 
examples of a transition from primary to representative assemblies. The 
earliest legislature of Maryland was a primary assembly composed of all 
the freemen of the colony ; to the next assembly some were allowed to 
send proxies ; and before representation was finally established there 
appeared the singular anomaly of a body partly representative, partly 
primary, at least one freeman insisting upon attending in person (Doyle, 
I., pp. 287-290). The other example is to be found in the history of 
Rhode Island, whose citizens for some time insisted upon meeting at New¬ 
port in primary assembly for the purpose of electing the persons who were 
to represent them in the colonial legislature, thus as it were jointly inau¬ 
gurating the session, to use Mr. Foster’s words, and then leaving the legis¬ 
lature “to run for itself for the remainder of the time” (W. E. Foster, 
Town Government in Rhode Island, p. 26). 

The Powers of a Representative. — But only very 
modern times have settled the theory of a representative’s 
power. The strong tendency among all vigorously political, 
all self-reliant self-governing peoples has been to reduce their 
representatives to the position and functions of mere delegates, 
bound to act, not under the sole direction of their own judg¬ 
ments, but upon instruction from their constituents. The better 
thought of later times has, however, declared for a far different 
view of the representative’s office, has claimed for the represent* 
ative the privilege of following his own judgment upon public 
questions, of acting, not as the mouthpiece but rather as the 
fully empowered substitute of his constituents. 


SUMMARY. 


541 


Scope of Modern Legislation. — The question is of the 
greater importance because of the extraordinary scope of legisla¬ 
tion in the modern state, and of the extreme complexity nowa¬ 
days attaching to all legislative questions. Time was, in the 
infancy of national representative bodies, when the representa¬ 
tives of the people were called upon simply to give or refuse their 
assent to laws prepared by a king or by a privileged class in the 
state; but that time is far passed. The modern representative 
has to judge of the gravest affairs of government, and has to 
judge as an originator of policies. It is his duty to adjust every 
weighty plan, preside over every important reform, provide for 
every passing need of the state. All the motive power of govern¬ 
ment rests with him. His task, therefore, is hs complex as the 
task of governing, and the task of governing is as complex as is 
the play of economic and social forces over which it has to 
preside. Law-making now moves with a freedom, now sweeps 
through a field unknown to any ancient legislator; it no longer 
provides for the simple needs of small city-states, but for the 
complex necessities of vast nations, numbering their tens of 
millions. If the representative be a mere delegate, local inter¬ 
ests must clash and contend in legislation to the destruction of 
all unity and consistency in policy; if, however, the representa¬ 
tive be. not a mere delegate, but a fully empowered member of 
the central government, coherence, consistency, and power may 
be given to all national movements of self-direction . 1 

The Making, Execution, and Interpretation of Law. — 
The question of the place, character, and functions of legislation 
is in our days a very different question from any that faced the 
ancient politician. The separation of legislative, judicial, and 
executive functions is a quite modern development in politics, 
and we have questions to settle concerning the integration of 
these three functions which could not have arisen in any ancient 
state. In the early days when the family was the state; in the 
later days when the political organization, although it had lost 
the father’s omnipotent jurisdiction, still rested upon the idea of 

i The introduction of the initiative and the referendum is evidence of 
the distrust felt by the people for their representatives, — often not their 
representative, but that of special interests. 


542 


SUMMARY. 


kinship; and even in still later times when forms of government 
inherited from these primitive conceptions still persisted, all the 
functions of government were vested in a single individual or in 
a single body of individuals, in a father-king or in an assembly 
of elders. Even in highly developed free states like Athens no 
adequate or complete recognition of any essential difference in 
the character of the several duties of the judge, the executive 
officer, and the law-maker is discoverable. It was a very modern 
conception that governmental functions ought to be parcelled out 
according to a careful classification. The ancient assembly made 
laws, elected officers, passed judgment upon offenders against the 
laws, and yet was conscious of no incongruity. It was before the 
day when any one could be shocked by such a confusion of powers. 

Modern politicians are, however, greatly shocked by such 
confusions of function. They insist, as of course, that every con¬ 
stitution shall separate the three ‘ departments ’ of government, 
and that these departments shall be in some real sense inde¬ 
pendent of each other; so that if one go wrong the others may 
check it by refusing to cooperate with it. In no enlightened 
modern system may the legislator force the judge, or the judge 
interfere with the privileges of the legislator, or judge or legis¬ 
lator wrongly control the executive officer. 

Charters and Constitutions. — This division of powers 
between distinct branches of government has been greatly em¬ 
phasized and developed by the written constitutions so charac¬ 
teristic of modern political practice. These constitutions have 
by no means all had the same history, and they differ as widely 
in character as in origin; but in every case they give sharp defi¬ 
niteness to the organs and methods of government which illus¬ 
trate the most salient points of modern political development. 
Our own constitutions, as we have seen (page 283), originated in 
grants from the English crown, for which were substituted, in 
the days following the war for Independence, grants by the 
people. Originally royal, they are now national charters : and 
they have been kept close to the people, firmly based upon their 
direct and explicit sanction. The constitutions of Switzerland 
bear a like character: proceeding from the people, they rest in 
all points upon the people’s continuing free choice. 


SUMMARY. 


543 


In France, on the contrary, the people have as yet 
had no direct part in constitution-making. French constitu¬ 
tions have in all cases been both made and adopted by con¬ 
stituent assemblies: at no stage are the people directly called 
upon for their opinion, — not even after the constitution has 
been formulated. Its adoption, like its construction, is a matter 
for the constituent assembly alone: it is given to the people, 
not accepted by them. The present constitution of the Repub¬ 
lic was even framed and adopted by a convention which 
could show no indisputable right to act as a constituent 
assembly (page 148). 

Creation vs. Confirmation of Liberties by Constitution. 

— This process, of the gift of a constitution to the people by 
an assembly of their own choice, may be said to be interme¬ 
diate between our own or the Swiss practice, on the one hand, 
and the practice of the monarchial states of Europe, on the 
other, whose constitutions are the gift of monarclis to their 
people. In many cases they have been forced from reluctant 
monarchs, as Magna Charta was wrung by the barons from 
John : but whether created by stress of revolution, as in so 
many states in 1848 (page 445), or framed later and more at 
leisure, as in Prussia (page 445), they have been in the form 
of royal gifts of right, have not confirmed but created liberties 
and privileges. 

Our own charters and constitutions have, on the con¬ 
trary, been little more than formal statements of rights and 
immunities which had come to belong to Englishmen quite in¬ 
dependently of royal gift or favor. The Acts of Parliament 
upon which the governments of such modern English colonies 
as Canada and Australia rest do scarcely more, aside from 
their outlining of forms of government, than extend to the 
colonists the immemorial privileges of Englishmen in England. 
And so our own colonial charters, besides providing for gov¬ 
ernors, courts, and legislatures, simply granted the usual rights 
of English freemen. Our constitutions have formulated our 
political progress, but the progress came first. European con¬ 
stitutions, on the other hand, have for the most part created 
the rights and immunities, as well as the popular institutions, 


544 


SUMMARY. 


which they embody : they institute reform, instead of merely 
confirming and crystallizing it. 

The Modern Federal State: contrasted with Confeder¬ 
ations. — In no part of modern political development have 
written constitutions played a more important, a more indis¬ 
pensable role than in the definite expression of the nice balance 
of institutions and functions upon which the carefully adjusted 
organism of the modern federal state depends. The federal 
state, as we know it, is a creation of modern politics. Ancient 
times afford many instances of confederated states, but none 
of a federal state. The mere confederations of ancient and of 
modern times, however long preserved, and of however distin¬ 
guished history, were still not states in the proper sense of the 
term. The most prominent example of a confederation in ancient 
times was the celebrated Achaean League. In modern times we 
have had the early Swiss confederation, the several German con¬ 
federacies, and our own short-lived Confederation. 

They were composed of states, and their only constituent law 
was treaty. They were themselves, as confederacies, without 
sovereign power: sovereignty remained unimpaired with their 
component states. Their members did not unite: they simply 
agreed, as equals, to act in concert touching certain matters of 
common interest. 

The modern federal state, on the contrary, is a single and com¬ 
plete political personality among nations: it is not a mere rela¬ 
tionship existing between separate states, but is itself a State. 
Confederation and federal state have this peculiarity in common, 
that they are both constituted by the association of distinct, inde¬ 
pendent communities: but under a confederation these com¬ 
munities practically remain distinct and independent, while 
within a federal state they are practically welded together into 
a single state, into one nation. 

Under both forms, however, it has proved possible to make pro¬ 
vision for the association, upon the best terms of mutual help and 
support, of communities unlike in almost every feature of local 
life, and even of communities diverse in race, without any sur¬ 
render of their individuality or of their freedom to develop each 


SUMMARY. 


545 


its characteristic life. Nothing could well be conceived more 
flexible than a system which can hold together German, French, 
and Italian elements as the Swiss constitution does. 

Distinguishing Marks of the Federal State. — The federal 
state has, as contrasted with a federation, these distinguishing 
features : (a) a permanent surrender on the part of the constituent 
communities of their right to act independently of each other in 
matters which touch the common interest, and the consequent 
fusion of these communities, in respect of these matters, into a 
single state. As regards other states they have merged their 
individuality into one national whole: the lines which separate 
them are none of them on the outside but all on the inside. (b) 
The federal state possesses a special body of federal law and a 
special federal jurisprudence in which is expressed the national 
authority of the compound state. This is not a law agreed to by 
the constituent communities : it is the spoken will of the new 
community, the Union, (c) There results a new conception of 
sovereignty. The functions of political authority are parcelled 
out. In certain spheres of action the authorities of the Union are 
entitled to utter laws which are the supreme law of the land; in 
other spheres of action the constituent communities still act with 
the full autonomy of independent states. The one set of authori¬ 
ties is sovereign; for it presides, and the range of its powers is, 
in the last resort, determined by itself; but the other set of 
authorities exercises full dominion, though in a narrower sphere. 
Its powers are independent and self-sufficient, neither given nor 
subject to be taken away by the government of the Union, origina¬ 
tive of rights, and exercised at will. 

All modern federal states have written constitutions; but a 
written constitution is not an essential characteristic of federal¬ 
ism, it is only a feature of high convenience; such delicate co¬ 
ordinate rights and functions as are characteristic of federalism 
must be carefully defined ; each set of authorities must have its 
definite commission. 

It is not certain that the federal state, as at present established, 
is not a merely temporary phenomenon of politics. It is plain 
from the history of modern federal states, — a history as yet ex- 


546 


SUMMARY. 


tremely brief, — that the strong tendency of such organization is 
towards the transmutation of the federal into a unitary state. 
After union is once firmly established, not in the interest only 
but also in the affections of the people, the drift would seem to be 
in all cases towards consolidation. 

Existing Parallels and Contrasts in Organization. — The 

differences which emerge most prominently upon a comparison 
of modern systems of government are differences of adminis¬ 
trative organization chiefly and differences in the relationship 
borne by Executives to Legislatures. 

Administrative Integration : Relation of Ministers to the 
Head of the Executive. — One of the chief points of interest 
and importance touching any system of administration is the 
relation which the ministers of state bear to the head of the 
Executive. Of course much of the consistency and success of 
policy depends upon the presence or absence of a single guiding 
will: if ministers be without real leadership, they are apt to be 
without energy or success in policy, if not actually at odds with 
each other. 

Under our own system the heads of departments are 
brought together into at least nominal unity by their common sub¬ 
ordination to the President. Although they are, as we have seen 
(page 374), rather the colleagues than the servants of the Presi¬ 
dent, his authority is yet always in the last resort final and 
decisive: the secretaries have had very few powers conferred 
upon them by Congress in the exercise of which they are not 
more or less subject to presidential oversight and control. The 
President is in a very real sense head of the Executive. In 
France and England, on the contrary, the nominal head of the 
Executive is not its real head. Not the President or the sov¬ 
ereign but the Prime Minister speaks the decisive word in 
administration and in the initiation of policy, — and the Prime 
Minister only so far as he can carry his colleagues with him. 
The headship of the President and the sovereign is in large part 
formal merely, being real only in proportion to the influence 
given them by their interior position as regards affairs. The 
influence of the Prime Minister is the vital integrating force. 


SUMMARY. 


547 


Perhaps it is safe to say that only in Germany, among constitu¬ 
tional states, has there been an example of a really sovereign 
guiding will in administration. The Emperor’s own will or that 
of the vice-regent Chancellor was the real centre and source of 
policy, and the heads of department were ministers of that will. 
And there is under such a system an energy and coherence of 
administrative action such as no other system can secure. The 
grave objection to it is the absorption of so much vitality by the 
head of the state that its outlying parts, its great constituent 
members, the people, are apt to be drained of their political 
life. 

Relations of the Administration as a Whole to the Min¬ 
isters as a Body. — Scarcely less important from an administra¬ 
tive point of view than the relations of the ministers to the head 
of the Executive is the relation of the administration as a whole, 
both central and local, to the ministers as a body. We have seen 
(pages 330, 335, 336) that in the commonwealths of our own 
Union there is in this regard practically no administrative 
integration; that the central officers of administration do not as a 
rule constitute a controlling but only a superior sort of clerical 
body. In our federal organization we have the President as 
supreme chief, but the cabinet as a body does not usually exercise 
any concerted control over administration taken as a whole. Its 
conferences as a body are confined for the most part to political 
questions: administrative questions are decided separately, by 
each department for itself, the only real central authority in 
administrative matters being the President’s opinion, not the 
counsel of his ministers. As regards points of administrative 
policy each department is a law unto itself. In England we find 
a slightly greater degree of administrative control exercised by 
the Cabinet as a body. A “ Treasury minute,” for instance, is 
required for any redivision of business among the departments, 
and such redivisions are presumably matters of agreement in Cabi¬ 
net council. But even in England the administrative control of 
the Cabinet is rather the result of the political responsibility 
of the Cabinet than of any conscious effort to integrate adminis¬ 
tration by the constitution of a body which shall habitually regu¬ 
late, by semi-judicial processes, the main features and when 


548 


SUMMARY. 


necessary even the details of executive management. In France 
and Prussia, on the contrary, such an effort is made, and is made 
with effect. In France, besides a Cabinet of ministers whose 
function is wholly political, there is a Council of ministers whose 
single office is systematic administrative oversight, the harmoniz- 
ing of methods, the proper distribution of business among the 
departments, etc. (page 158) ; and above this Council of ministers, 
again, there is a Council of State, a judicial body whose part it is 
to accommodate all disputes and adjust all conflicts of jurisdic¬ 
tion between the departments, as well as to act as the supreme 
administrative tribunal (page 173). In Prussia there was a like 
system : a Stciatsministerium which to a certain extent combined 
the duties given in France to the Council of Ministers and to the 
Council of State, and also a Council of State which was by de¬ 
grees being elevated to high judicial functions. 

The Administration and the Legislature. — The relations 
borne by the Administration, the branch which executes the laws, 
to the Legislature, the branch which makes the laws, touch 
the very essence of a system of government. Legislation and 
administration ought under every well-devised system to go hand 
in hand. Laws must receive test of their wisdom and feasibility 
at the hands of administration: administration must take its 
energy and its policy from legislation. Without legislation ad¬ 
ministration must limp, and without administration legislatioD 
must fail of effect. The vital connection between the two is well 
illustrated in the matter of money appropriations for the support 
of administration. Legislators hold, and properly hold, the 
purse-strings of the nation : only with their consent can taxes be 
raised or expended. Without the appropriations for which they 
ask, administrators cannot efficiently perform the tasks imposed 
upon them : but without full explanation of the necessity for 
granting the sums asked and of the modes in which it is proposed 
to spend them legislators cannot in good conscience vote them. 
A perfect understanding between Executive and Legislature is, 
therefore, indispensable, and no such understanding can exist in 
the absence of relations of full confidence and intimacy between 
the two branches. 

The absence of such a cooperative understanding has 


SUMMARY. 


549 


led in France to the gravest financial impotency on the part of 
the government. The Chambers trust almost nothing concerning 
appropriations to the authoritative suggestion of the ministers. 
The great Budget Committee (page 162) not only examines and 
revises but also at pleasure annuls or utterly reverses the financial 
proposals of the ministers: the ministers are for the most part 
left entirely without power, and therefore entirely without re¬ 
sponsibility, in the matter, and appropriations follow the whim 
of the Chambers rather than the necessities of administration. 
In England the ministers are allowed to insist upon the appropri¬ 
ation of the sums they ask for, because they are held strictly 
responsible to Parliament for the policy involved in every finan¬ 
cial proposal. The means of raising the money desired Parlia¬ 
ment is to a certain extent at liberty to suggest without implying 
distrust of the ministers ; but the amounts the ministers ask for 
must be voted unless Parliament wishes the ministers to resign. 
Confidence and responsibility go hand in hand (pages 196, 197). 
Under our own system there is practically no commerce between 
the heads of departments and Congress: the administration sends 
in estimates, but the Appropriations Committees of the houses 
decide without ministerial interference the amounts to be 
granted. 

The relations existing between the Executive and the Legis¬ 
lature equally affect every other question of policy, from mere 
administrative questions, such as the erection of new departments, 
increases of clerical force, or the redistribution of departmental 
business, to the gravest questions of commerce, diplomacy, and 
war. The integration or separation of the Executive and the 
Legislature may be made an interesting and important criterion 
of the grade and character, in this day of representative institu¬ 
tions, of political organization in the case of existing governments. 
Thus in England we have complete leadership in legislation in¬ 
trusted to the ministers, and to complete leadership is added 
complete responsibility (pages 196, 197). In France we have 
partial leadership (financial matters being excluded) with entire 
responsibility (page 160). In Prussia, leadership without re¬ 
sponsibility (pages 460, 461); and in Switzerland the same 
(page 403). Under our own system we have isolation plus irre- 


550 


SUMMARY, 


sponsibility,— isolation and therefore irresponsibility. At this 
point more widely than at any other our government differs from 
the other governments of the world. Other Executives lead ; our 
Executive obeys . 1 

1 In recent years the President has steadily gained in his influence to 
direct legislation, hut it is only through his ability to act as the spokesman 
of public opinion. So-called “ administration measures ” now constitute the 
leading features of the legislative programme, but the Executive still lacks 
the true position of leadership. 


XXII. 


AFTER THE WAR. 


The governments of all the powers actively participating in 
the war have experienced important changes. Germany, Austria- 
Hungary and Russia are in the midst of revolution; in place of 
kingdoms and empires, republics have been proclaimed; in place 
of autocracy, democracy has been enthroned. The governments 
of the other belligerent countries have not escaped the growing 
sense of popular supremacy, but have everywhere been brought 
into closer contact with the people. 

An important result of these changes will be a greater unity 
among the states of the world; competing forms of government, 
with their different ideals, will, we believe, be replaced by govern¬ 
ments organized on the common basis of popular representation 
and control: dynastic rivalries will no longer vex the world with 
wars nor will it be possible again for ambitious rulers to plunge 
the world into warfare for the accomplishment of their personal 
ends. A surer basis for peace has been laid in the common and 
universal control of governments by their peoples. 

Though it be true that democratic government will make wars 
less likely, it will not eliminate all causes of conflict between 
nations, and if the enormous sacrifices of this war are not to be 
made in vain, not merely must democracy triumph in the indi¬ 
vidual states, but in the society of states as well. 

The development of modern democracy has meant two things : 
equality of rights and the assurance of those rights through popu¬ 
lar control of government. Within the individual states special 
privilege has steadily been replaced by equality of all men before 
the law, and the right of a few to administer government as their 

551 


552 


AFTER THE WAR. 


private possession has made way for the conception that the 
whole people has the right to direct government for the welfare 
of all. To put it in another way, democracy may be regarded as 
the realization of human rights through the agency of government 
in channels determined by the popular will. 

In the field of international relations all states have been re¬ 
garded theoretically as equal; this has been the basis upon which 
international law has rested, yet outside the realm of theory this 
equality has been confronted by a doctrine of state action directly 
in conflict with it. The modern state is a territorial state and in 
the realm of international politics the possession or lack of terri¬ 
tory has largely determined the influence and importance of states. 
Consequently the acquisition of territory came to be regarded as 
a necessity in the expansion of national life. But new territory 
could be acquired only at the expense of some other power. 
Here was a frequent source of animosities and wars. In this 
struggle for territory no small state could successfully compete, 
but worse still no small state could feel itself safe from the 
menace of imperialism. Moreover every large state was jealous 
of the extension of the power of every other and each bit of ter¬ 
ritory brought within the control of one, excited both the antag¬ 
onism and the greed of every other whose relative position of 
power and influence was thereby affected. The logical result was 
deep-seated distrust and a fear of being overreached, accompanied 
by standing armies and powerful navies on whose existence the 
peace of Europe was said to depend. Over against this whole 
conception of armed imperialism there arose the movement to 
do away with armies and navies and the oppressive tax burdens 
which they uselessly imposed. Many different motives animated 
the people who sympathized with this idea; some adhered to it 
out of antagonism to war as in itself a brutal and unreasonable 
thing ; some because they desired to see the expenditures hitherto 
directed to preparation for war diverted to improving the social 
well-being of humanity. 

The stages in the development of this idea are clearly marked 
by the means which were to replace war in the settlement of 
international difficulties. Following the adjustment of the Ala¬ 
bama claims by arbitration at Geneva in 1871, this method of 


AFTER THE WAR. 


553 


settlement was eagerly taken up and pressed upon the attention 
of the world. The First Hague Conference in 1899, summoned 
to consider the question of disarmament and heralded as a Peace 
Conference, was unable to agree upon any measures whatever 
looking toward disarmament, but in behalf of peace it adopted a 
plan providing a general scheme of arbitration and a so-called 
permanent court of arbitration available for any states desiring 
to make use of it. The establishment of the permanent court of 
arbitration was received as a great achievement and stimulated 
to renewed activity those who looked upon arbitration as the 
means by which peace could be maintained. Numerous arbitra¬ 
tion treaties were concluded but as they almost universally 
excluded questions touching national honor and interests, little 
was accomplished by them. 

Arbitration, moreover, did not seem adequate to many who 
were seeking a peaceful settlement of international disputes and 
the judicial settlement of such disputes was advocated by indi¬ 
viduals and societies. At the Second Hague Conference in 1907 
an international prize court was provided but due to a failure to 
agree upon the law which this court should enforce, it remained a 
dead letter. Finally in 1914 the great European conflict, so long 
anticipated, became a reality through the wanton aggression of 
Germany and Austria. The doctrine of imperialism became in 
the hands of Germany a demand for “a place in the sun,” a 
demand for a conquest as the right of the strong over the weak, 
as the supremacy of might over right, and a determination to ex¬ 
tend her boundaries and acquire territory at the expense of her 
neighbors and in utter disregard of international law, of right, 
and of humanity. The sentiment aroused in the United States 
by Germany’s violation of the neutrality of Belgium in complete 
disregard of solemn treaty obligations, the terrible atrocities 
committed by her armed forces upon the civilian population of 
Belgium and northern France, her defiance and disregard of neu¬ 
tral rights, and the menace of her conduct to the existence of the 
society of states led to the establishment of a society for the ad¬ 
vocacy of a League to Enforce Peace. The fundamental principle 
of the society was to secure the establishment among the nations 
of a League, the members of which would bind themselves to use 


554 


AFTER THE WAR. 


economic pressure or military force against any state which 
should go to war without first resorting to peaceful means, in¬ 
cluding arbitration, for the settlement of the difficulty. It was 
the application to the society of nations of the principle in force 
in every individual state. The law-breaker who violates the 
rights of another finds the combined force of the society arrayed 
against him. 

The success of such a League must depend upon the whole¬ 
hearted acceptance by its members of the obligations it imposes. 
The small states will find in it a source of protection that will 
free them from the fear of aggression and conquest and their 
acceptance of it may naturally be anticipated; but the large and 
powerful states will be equally benefited through the prevention 
of a repetition of another world-war. It will mean, however, a 
certain limitation upon their freedom of action; they must re¬ 
nounce any claim to overcome the weaker by their superior 
strength, and they must forego the right in any dispute to resort 
straightway to force; they must be prepared to use their power 
in behalf of the established law though their own rights be not 
immediately endangered. Secret treaties and alliances must be 
forbidden, and disarmament be brought about. 

President Wilson has declared that the United States can 
never again be a neutral in a great European war. The world 
has become too closely knit together for us to pursue in the future 
the policy of isolation. 

The hope of such a League and the possibility of its realization 
have been immeasurably advanced by the destruction of autoc¬ 
racy and the universal establishment of democracy. 







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